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110th Congress Exec. Rept.
SENATE
2d Session 110-12
======================================================================
EXTRADITION TREATIES WITH THE EUROPEAN UNION
_______
September 11, 2008.--Ordered to be printed
_______
Mr. Dodd, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Docs. 109-14, 109-15, 109-16, 109-17, 110-11, and
110-12]
The Committee on Foreign Relations, to which was referred
the Agreement on Extradition between the United States of
America and the European Union, signed at Washington on June
25, 2003 (Treaty Doc. 109-14), together with 27 bilateral
extradition instruments subsequently signed with the Republic
of Austria on July 20, 2005 (Treaty Doc. 109-14), the Kingdom
of Belgium on December 16, 2004 (Treaty Doc. 109-14), the
Republic of Bulgaria on September 19, 2007 (Treaty Doc. 110-
12), the Republic of Cyprus on January 20, 2006 (Treaty Doc.
109-14), the Czech Republic on May 16, 2006 (Treaty Doc. 109-
14), the Kingdom of Denmark on June 23, 2005 (Treaty Doc. 109-
14), the Republic of Estonia on February 8, 2006 (Treaty Doc.
109-16), the Republic of Finland on December 16, 2004 (Treaty
Doc. 109-14), France on September 30, 2004 (Treaty Doc. 109-
14), the Federal Republic of Germany on April 18, 2006 (Treaty
Doc. 109-14), the Hellenic Republic on January 18, 2006 (Treaty
Doc. 109-14), the Republic of Hungary on November 15, 2005
(Treaty Doc. 109-14), Ireland on July 14, 2005 (Treaty Doc.
109-14), the Italian Republic on May 3, 2006 (Treaty Doc. 109-
14), the Republic of Latvia on December 7, 2005 (Treaty Doc.
109-15), the Republic of Lithuania on June 15, 2005 (Treaty
Doc. 109-14), the Grand Duchy of Luxembourg on February 1, 2005
(Treaty Doc. 109-14), Malta on May 18, 2006, with a related
exchange of letters signed the same date (Treaty Doc. 109-17),
the Kingdom of the Netherlands on September 29, 2004, with a
related exchange of notes signed the same date (Treaty Doc.
109-14), the Republic of Poland on June 9, 2006 (Treaty Doc.
109-14), the Portuguese Republic on July 14, 2005 (Treaty Doc.
109-14), Romania on September 10, 2007 (Treaty Doc. 110-11),
the Slovak Republic on February 6, 2006 (Treaty Doc. 109-14),
the Republic of Slovenia on October 17, 2005 (Treaty Doc. 109-
14), the Kingdom of Spain on December 17, 2004 (Treaty Doc.
109-14), the Kingdom of Sweden on December 16, 2004 (Treaty
Doc. 109-14), and the United Kingdom of Great Britain and
Northern Ireland on December 16, 2004, with a related exchange
of notes signed the same date (Treaty Doc. 109-14), having
considered the same, reports favorably thereon with one
condition and a declaration made with respect to each treaty,
as indicated in the resolutions of advice and consent, and
recommends that the Senate give its advice and consent to
ratification thereof, as set forth in this report and the
accompanying resolutions of advice and consent.
CONTENTS
Page
I. Purpose..........................................................2
II. Background.......................................................2
III. Major Provisions.................................................3
IV. Bilateral Instruments With 27 EU Members.........................5
V. Entry Into Force.................................................7
VI. Implementing Legislation.........................................7
VII. Committee Action.................................................7
VIII.Committee Recommendation and Comments............................7
IX. Resolutions of Advice and Consent to Ratification...............10
X. Annex.--Treaty Hearing of May 20, 2008..........................21
I. Purpose
The purpose of these treaties is to modernize, strengthen,
and expand on the extradition relationship as between the
United States, and the European Union and its Member States.
II. Background
Extradition is the formal process by which one nation
requests and obtains from another nation the surrender of a
suspected or convicted criminal. The United States will
ordinarily only grant extradition pursuant to a treaty. The
United States has in force a bilateral extradition treaty with
each of the European Union (EU) Member States. These treaties
account for over twenty percent of U.S. extradition treaties
and a significantly higher percentage of U.S. extradition
requests.\1\ Nevertheless, many of these treaties are quite old
and some of their provisions are not in accord with modern
extradition practice. The oldest of our existing extradition
treaties with EU Member States dates back over a century ago\2\
and most were concluded over twenty years ago, such that most
if not all are in need of modernizing. In addition, as EU law
enforcement institutions have evolved over the last few
decades, it has become clear that developing a more formal
basis for cooperation on such matters with the EU itself would
be useful.
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\1\Michael Abbell, Extradition to and from the United States,
Chapter 3, Sec. 3-4, p.120 (2007).
\2\1901 Treaty on Extradition between the United States and the
Kingdom of Servia (12 Bevans 1238).
---------------------------------------------------------------------------
These extradition treaties, of which there are 28, would
modernize our existing extradition treaties with the Member
States of the EU\3\ and strengthen an emerging institutional
relationship on law enforcement matters between the United
States and the European Union itself. The framework agreement
on extradition with the EU (the ``EU Framework Agreement'')
essentially requires EU Member States to amend and supplement
their existing bilateral extradition treaties with the United
States to include certain modern provisions on extradition if
they have not already done so. Each bilateral instrument
implements the EU Framework Agreement by amending or replacing
an existing bilateral extradition treaty so that every U.S.
bilateral extradition treaty with a Member State of the EU will
be uniformly updated to conform to the provisions in the EU
Framework Agreement.
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\3\Listed by accession date, Member States of the European Union
are as follows: Belgium (1952 (ECSC)), France (1952 (ECSC)), Italy
(1952 (ECSC)), Luxembourg (1952 (ECSC)), the Netherlands (1952 (ECSC)),
West Germany (1952 (ECSC)), Denmark (1973), Ireland (1973), the United
Kingdom (1973), Greece (1981), Portugal (1986), Spain (1986), Austria
(1995), Finland (1995), Sweden (1995), Cyprus (2004), Czech Republic
(2004), Estonia (2004), Hungary (2004), Latvia (2004), Lithuania
(2004), Malta (2004), Poland (2004), Slovakia (2004), Slovenia (2004),
Bulgaria (2007), and Romania (2007).
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III. Major Provisions
A detailed paragraph-by-paragraph analysis of each treaty
may be found in the Letters of Submittal from the Secretary of
State to the President on these instruments, which are
reprinted in full in Treaty Documents 109-14, 109-15, 109-16,
109-17, 110-11, and 110-12. What follows is a brief summary of
some of the key provisions that would be incorporated into our
bilateral treaty relationships with every EU Member State if
not already contained in existing treaties pursuant to the EU
Framework Agreement.
Extraditable Offenses: Modern Dual-Criminality Provisions
Early U.S. extradition treaties confined extraditable
offenses to those specifically listed in the treaty itself.
Such an approach limits extradition for newly emerging forms of
criminality that the United States has a strong interest in
pursuing, such as antitrust, cybercrime, and environmental
offenses. Modern extradition treaties, however, have developed
a new approach, which is frequently referred to as the
principle of ``dual criminality.'' Dual criminality provides
that a crime is extraditable if it is punishable as a crime
under the criminal law of both parties to the treaty. Pursuant
to Article 4 of the EU Framework Agreement, outdated lists of
extraditable offenses would be replaced with this modern ``dual
criminality'' standard, which would enable our extradition
treaties to cover new offenses as they develop in the criminal
legal systems of the United States and its partner country
without having to amend the treaty each time. Article 4
additionally contemplates extradition for extraterritorial
offenses, which are particularly useful when pursuing
terrorists and persons involved in drug trafficking.
Streamlined Authentication and Transmission of Documents
Treaty requests for extradition from other countries are
generally submitted to the Department of State and forwarded to
the Department of Justice, which then initiates a judicial
proceeding for the arrest of the fugitive and an extradition
hearing before the court to determine if the fugitive is
extraditable. Treaty requests for extradition from the United
States to other countries generally travel from prosecutors to
the Department of State to foreign diplomatic officials, who in
turn have their own equivalent of the Department of Justice
that handles the foreign extradition proceeding. The EU
Framework Agreement would authorize communications directly
between prosecutors, as well as other departures from the
current norm, that are intended to make the process more
efficient. For example, under Article 6, requests for
provisional arrest prior to the receipt of a formal extradition
request may be communicated directly between the Justice
Department and its foreign equivalents. In addition, under
Article 5(2), the Justice Department and its counterparts in EU
Member States can certify extradition documents, when
ordinarily this has been a task reserved for diplomatic
officials. In sum, with the new EU Framework Agreement as
implemented through the associated bilateral instruments, the
process of authenticating documents and the transmission of
provisional arrest and extradition requests would be
streamlined. See Articles 5, 6 and 7 of the EU Framework
Agreement.
Temporary Transfer of Persons
Fugitives sometimes face criminal charges or have been
convicted for other offenses in the countries to which they
have fled. Traditionally, U.S. extradition treaties have
allowed the requested State to defer action on an extradition
request until the fugitive could be surrendered unencumbered.
More modern agreements afford the requested State the option of
temporarily surrendering the individual under a promise for his
return when proceedings in the requesting State have been
completed. Without the option of a temporary transfer, the case
against a fugitive can become stale while the fugitive is
serving a sentence in another country. Article 9 of the new EU
Framework Agreement, as incorporated into the various bilateral
instruments, would provide authority for the temporary transfer
to the requesting State of persons who are being prosecuted or
are serving a sentence in the requested State. Any person so
surrendered would be held in custody by the requesting State
and would be returned to the requested State at the conclusion
of proceedings against that person, as mutually agreed upon by
the parties.
Modern Approach to Competing Extradition Requests/Parity with the
European Arrest Warrant
Older U.S. extradition treaties obligate parties that
receive competing extradition requests for the same fugitive to
surrender the fugitive on a first come, first served basis.
More modern extradition treaties often obligate the requested
State to consider a list of relevant factors when weighing
competing requests. Pursuant to Article 10 of the EU Framework
Agreement, the requested State is to consider all relevant
factors, including the following: 1) whether the requests were
each made pursuant to a treaty; 2) the locations where each of
the offences were committed; 3) the respective interests of the
requesting States; 4) the seriousness of the offenses; 5) the
nationality of the victim; 6) the possibility of any subsequent
extradition between the requesting States; and 7) the
chronological order in which the requests were received from
the requesting States.
Article 10 of the EU Framework Agreement makes clear that
extradition requests from the United States and competing
requests for surrender made pursuant to a European Arrest
Warrant (which is the internal EU mechanism for effectively
extraditing individuals) will be evaluated using the same
approach, including the list of factors described above. As a
result, U.S. requests for extradition sent to EU Member States
would have the same status as competing requests submitted by
other EU Member States.
Simplified Extradition Procedures if Extradition is Not Contested
Article 11 of the EU Framework Agreement would authorize a
simplified extradition process in cases in which the person
sought does not contest extradition. Older U.S. extradition
treaties do not include such a provision; this is a modern
development. While such a scenario is the exception rather than
the rule, under certain circumstances it may be to the
fugitive's benefit to seek an expedited extradition. For
example, a fugitive may decide not to contest extradition
because of a concern that with the passage of time, a witness
for the defense may die or exculpatory evidence may be lost.
Transit Authority
Article 12 of the EU Framework Agreement provides a process
through which consent can be obtained for the transportation of
a person through the United States or any EU Member State who
is being ``surrendered'' to or from the United States or any EU
Member State. In addition, Article 12 provides that
authorization is not required when air transportation is used
and no landing is scheduled on the territory of the transit
State. In sum, with the new EU Framework Agreement, transit
authority would be provided in order to facilitate the
transportation of persons surrendered to a State Party by a
third country when that person has to travel through another
State Party in order to be surrendered. See Article 12 of the
EU Framework Agreement.
Death Penalty Assurances
With the new EU Framework Agreement, a uniform mechanism
would be provided by which States Parties can condition
extradition on an assurance that the death penalty shall not be
imposed, or shall not be carried out, if the offense for which
extradition is sought is punishable by death under the laws in
the requesting State and not punishable by death under the laws
of the requested State. See Article 13 of the EU Framework
Agreement. Variations of this provision are already provided
for in most U.S. extradition treaties with EU Member States
because all EU Member States have effectively abolished the
death penalty.\4\
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\4\The only country of the European Union that still retains
capital punishment in its law is Latvia, but Latvia joined Protocol 6
of the European Convention on Human Rights (the ``ECHR'') in 1999,
which restricts the application of the death penalty to times of war or
``imminent threat of war.'' Moreover, in 2002, Latvia signed Protocol
13 of the ECHR, which abolishes the death penalty under all
circumstances. Latvia has yet to ratify Protocol 13, but has
nevertheless imposed a moratorium on capital punishment.
---------------------------------------------------------------------------
IV. Bilateral Instruments With
27 EU Member States
There are 22 bilateral instruments with EU Member States
that amend and supplement existing bilateral extradition
treaties to include the modern provisions on extradition
described above. These are as follows: Austria (amending the
1998 U.S.-Austria Extradition Treaty);\5\ Belgium (amending the
1987 U.S.-Belgium Extradition Treaty);\6\ Cyprus (amending the
1996 U.S.-Cyprus Extradition Treaty);\7\ Czech Republic
(amending the 1925 U.S.-Czechoslovak Extradition Treaty along
with the 1935 Supplementary Extradition Treaty);\8\ Denmark
(amending the 1972 U.S.-Denmark Extradition Treaty);\9\ Finland
(amending the 1976 U.S.-Finland Extradition Treaty);\10\ France
(amending the 1996 U.S.-France Extradition Treaty);\11\ Germany
(amending the 1978 U.S.-Germany Extradition Treaty along with
the 1986 Supplementary Treaty with Germany);\12\ Greece
(amending the 1931 U.S.-Greece Extradition Treaty and its 1937
Protocol);\13\ Hungary (amending the 1994 U.S.-Hungary
Extradition Treaty);\14\ Ireland (amending the 1983 U.S.-
Ireland Extradition Treaty);\15\ Italy (amending the 1983 U.S.-
Italy Extradition Treaty);\16\ Lithuania (amending the 2001
U.S.-Lithuania Extradition Treaty);\17\ Luxembourg (amending
the 1996 U.S.-Luxembourg Extradition Treaty);\18\ The
Netherlands (amending the 1980 U.S.-Netherlands Extradition
Treaty);\19\ Poland (amending the 1996 U.S.-Poland Extradition
Treaty);\20\ Portugal (amending the 1908 U.S.-Portugal
Extradition Treaty);\21\ Slovak Republic (amending the 1925
U.S. Czechoslovakia Extradition Treaty and the 1935
Supplementary Extradition Treaty currently in force and
applicable to the Slovak Republic);\22\ Slovenia (amending the
1901 U.S.-Serbia Extradition Treaty currently in force and
applicable to Slovenia);\23\ Spain (amending the 1970 U.S.-
Spain Extradition Treaty along with three supplementary
treaties done in 1975, 1988, and 1996);\24\ Sweden (amending
the 1961 U.S.-Sweden Extradition Treaty along with the 1983
Supplementary Extradition Treaty);\25\ the United Kingdom
(amending the 2003 U.S.-U.K. Extradition Treaty).\26\
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\5\Treaty Doc. 105-50.
\6\Treaty Doc. 104-7.
\7\Treaty Doc. 105-16
\8\Exec. C, 69-1 and Exec. K, 74-1.
\9\Treaty Doc. 93-21.
\10\Treaty Doc. 95-9.
\11\Treaty Doc. 105-13.
\12\Ex. A. 96-1 and Treaty Doc. 100-6.
\13\Ex. D, 72-1 and Executive Agreement Series, No. 114.
\14\Treaty Doc. 104-5.
\15\Treaty Doc. 98-19.
\16\Treaty Doc. 98-20.
\17\Treaty Doc. 107-4.
\18\Treaty Doc. 105-10.
\19\Treaty Doc. 97-7.
\20\Treaty Doc. 105-14.
\21\Ex. JJ, 60-1.
\22\Ex. C 69-1 and Ex. K, 74-1.
\23\Ex. E, 57-1.
\24\Treaty Doc. 91-24; Treaty Doc. 94-13; Treaty Doc. 102-24; and
Treaty Doc. 105-15.
\25\Ex. E, 87-2 and Treaty Doc. 97-15.
\26\Treaty Doc. 108-23.
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The five remaining bilateral instruments with EU Member
States were concluded as stand-alone extradition treaties (as
opposed to amendments) that would supersede existing
extradition treaties with each country. Each of the five new
extradition treaties is a modernized version of the older
treaty, which conforms to the provisions of the EU Framework
Agreement. These five treaties were submitted to the Senate in
separate treaty documents, which are as follows: 1) The U.S.-
Latvia Extradition Treaty, which would replace an existing
extradition treaty from 1923 with Latvia;\27\ 2) The U.S.-
Estonia Extradition Treaty, which would replace an existing
extradition treaty from 1923 with Estonia;\28\ 3) The U.S.-
Malta Extradition Treaty, which would replace an existing
extradition treaty from 1931;\29\ 4) The U.S.-Romania
Extradition Treaty, which would replace an existing extradition
treaty from 1924, along with a 1936 supplementary treaty;\30\
and 5) The U.S.-Bulgaria Extradition Treaty, which would
replace an existing extradition treaty from 1924.\31\
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\27\Ex. F, 68-1.
\28\Ex. C, 68-1.
\29\Ex. E, 72-1.
\30\Ex. D, 75-1.
\31\Ex. X, 68-1.
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V. Entry Into Force
In accordance with Article 22, the EU Framework Agreement
shall enter into force on the first day following the third
month after the date on which the United States and the EU have
indicated that they have completed their internal procedures
for this purpose. Each bilateral instrument with an EU Member
State shall enter into force on the date of entry into force of
the EU Framework Agreement.
VI. Implementing Legislation
The legal procedures for extradition are governed by both
federal statute and self-executing treaties. Subject to a
contrary treaty provision, existing federal law implements
aspects of these treaties. See 18 U.S.C. Sec. Sec. 3181 to
3196. No additional legislation is needed for the United States
to fulfill its obligations under these treaties.
VII. Committee Action
The committee held a public hearing on these treaties on
May 20, 2008. Testimony was received from Susan Biniaz, Deputy
Legal Adviser at the Department of State and Bruce Swartz,
Deputy Assistant Attorney General for the Criminal Division at
the Department of Justice. A transcript of this hearing can be
found in the Annex to this report.
On July 29, 2008, the committee considered these treaties
and ordered them favorably reported by voice vote, with a
quorum present and without objection.
VIII. Committee Recommendation and Comments
The Committee on Foreign Relations believes that these
treaties, if ratified, would facilitate U.S. efforts in
fighting terrorism and transnational crime. In particular,
these treaties would eliminate obsolete provisions in existing
U.S. extradition treaties with EU Member States and replace
them with more effective, efficient, and modern provisions.
This will enable the United States to, among other things,
pursue extradition in cases involving serious crimes, such as
money laundering, antitrust, cybercrime, and environmental
offenses in situations in which the United States is now unable
to seek extradition. Accordingly, the committee urges the
Senate to act promptly to give advice and consent to
ratification of these treaties, as set forth in this report and
the accompanying resolution of advice and consent.
A. PROVISIONAL ARREST
Extradition treaties with Member States of the EU generally
provide a mechanism for provisional arrest, which allows for
the arrest and detention of a person on the basis of certain
information, including an arrest warrant from the requesting
State, for a period of time pending a formal extradition
request.
An issue that has received increasing attention in U.S.
courts is whether or not the magistrate who issues a
provisional arrest warrant in the United States must find
probable cause to believe that the person for whom the arrest
warrant is sought committed the crime underlying the
extradition request or whether it is enough to simply find
probable cause that the person at issue has been charged with
an extraditable crime by the requesting country. In response to
questions from the committee, the Department of Justice has
indicated that although the Fourth Amendment of the
Constitution applies, ``[e]xactly what categories and quantum
of information are sufficient to meet Fourth Amendment
requirements in the context of provisional arrest pending
extradition is not well settled.'' The EU Framework Agreement
provides no guidance on this matter, as it does not specify the
standard of proof that an EU Member State must satisfy in order
to obtain the provisional arrest of a fugitive in the United
States pending transmission of a formal extradition request.
While the committee takes no position as to what standard
of proof must be met in order to meet Fourth Amendment
requirements in the context of provisional arrest, the
committee does have concerns regarding the length of time an
individual may be detained pursuant to a provisional arrest
warrant without the United States having yet received a formal
extradition request that would establish probable cause to
believe that the person has committed a crime. Several
extradition treaties with EU Member States limit the number of
days that a person who has been provisionally arrested can be
detained by the requested State without a formal extradition
request having been submitted by the requesting State.\32\ For
example, Article 11(4) of the extradition treaty with the
Netherlands states as follows: ``Provisional arrest shall be
terminated if, within a period of 60 days after the
apprehension of the person sought, the Requested State has not
received the formal request for extradition and the supporting
documents mentioned in Article 9.'' Many EU Member State
extradition treaties, however, require each party to hold a
person who has been provisionally arrested for a certain
minimum period of time, but leave to each party's discretion
whether to hold that person longer without having yet received
the formal extradition request.\33\ For example, Article 10(4)
of the extradition treaty with Belgium states as follows: ``A
person who is provisionally arrested may be discharged from
custody upon the expiration of 75 days from the date of
provisional arrest pursuant to this Treaty if the executive
authority of the Requested State has not received the formal
request for extradition and the supporting documents required
in Article 7.''
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\32\See, e.g., U.S. bilateral extradition treaties with the Czech
Republic, the Republic of Finland, the Federal Republic of Germany, the
Hellenic Republic, the Italian Republic, and the Kingdom of Spain.
\33\See, e.g., U.S. bilateral extradition treaties with the
Republic of Austria, the Kingdom of Belgium, the Republic of Cyprus,
the Kingdom of Denmark, the Republic of Estonia, France, the Republic
of Hungary, the Republic of Latvia, the Republic of Lithuania, the
Grand Duchy of Luxembourg, Malta, and the United Kingdom of Great
Britain and Northern Ireland.
---------------------------------------------------------------------------
In response to questions asked by the committee, the
Department of Justice has explained that ``[i]t is rare for
extradition treaty partners to miss the treaty deadline for the
presentation of documents in support of extradition.'' The
Department of Justice also noted that because it is so rare,
the Department ``does not track statistics to demonstrate how
long a person who was provisionally arrested was held beyond
the treaty mandated deadline absent presentation of the formal
extradition documents.''
While the committee recognizes the value of a mechanism for
provisional arrest when trying to detain a fugitive from
justice, the committee is also concerned that such a mechanism
be subject to appropriate limits in light of the liberty
interests at stake. Thus, in the committee's view, the
Department of Justice should monitor the length of time that
individuals are detained pursuant to a provisional arrest
warrant pending an extradition request and thus has conditioned
its approval of the EU Framework Agreement on a report that
would provide such information. In addition, the committee
encourages the Department of State and the Department of
Justice, when negotiating such mechanisms in future treaties,
to include language, such as in the extradition treaty with the
Netherlands, that the provisional arrest ``shall be
terminated'' if the requested State has not received a formal
extradition request within a specified time period that is long
enough to satisfy the legitimate requirements of law
enforcement officials in making the request. Such language
would avoid the potential for provisional arrest procedures to
be used to detain an individual indefinitely.
B. RESOLUTIONS
The committee has included in the resolutions of advice and
consent one condition, which is a report on provisional arrest
discussed above, and one declaration, which is the same for
each treaty and is discussed below.
Declaration
In every resolution of advice and consent, the committee
has included a proposed declaration that states that each
treaty is self-executing. This declaration is consistent with
statements made in the Letters of Submittal from the Secretary
of State to the President on each of these instruments\34\ and
with the historical practice of the committee in approving
extradition treaties.\35\ Such a statement, while generally
included in the documents associated with treaties submitted to
the Senate by the executive branch and in committee reports,
has not generally been included in Resolutions of advice and
consent. The committee, however, proposes making such a
declaration in the Resolution of advice and consent in light of
the recent Supreme Court decision, Medellin v. Texas, 128 S.Ct.
1346 (2008), which has highlighted the utility of a clear
statement regarding the self-executing nature of treaty
provisions.
---------------------------------------------------------------------------
\34\See Treaty Doc. 109-14 at p. VI (stating that ``[t]he U.S.-E.U.
Extradition Agreements and bilateral instruments are regarded as self-
executing treaties under U.S. law . ...''); Treaty Doc. 109-15 at p. V
(stating that the ``[t]reaty is self-executing and will not require
implementing legislation.''); Treaty Doc. 109-16 at p. V (stating that
the ``[t]reaty is self-executing and will not require implementing
legislation''); Treaty Doc. 109-17 at p. V (stating that the ``[t]reaty
is self-executing and will not require implementing legislation.'');
Treaty Doc. 110-11 at p. V (stating that the instrument is ``self-
executing and will not require implementing legislation.''); and Treaty
Doc. 110-12 at p. V (stating that the instrument is ``self-executing
and will not require implementing legislation.'')
\35\The committee has consistently expressed the view that
extradition treaties are self-executing. See, e.g., Exec. Rept. 106-24
at p. II (stating with regard to the U.S.-Belize, the U.S.-Republic of
Paraguay, the U.S.-South African, and the U.S.-Sri Landa Extradition
Treaties that ``the legal procedures for extradition are governed by
both federal statutes and self-executing treaties'').
---------------------------------------------------------------------------
The committee believes it is of great importance that the
United States complies with the treaty obligations it
undertakes. In accordance with the Constitution, all treaties--
whether self-executing or not--are the supreme law of the land,
and the President shall take care that they be faithfully
executed. In general, the committee does not recommend that the
Senate give advice and consent to treaties unless it is
satisfied that the United States will be able to implement
them, either through implementing legislation, the exercise of
relevant constitutional authorities, or through the direct
application of the treaty itself in U.S. law. While situations
may arise that were not contemplated when the treaty was
concluded and ratified that raise questions about the authority
of the United States to comply, the committee expects that such
cases will be rare. Accordingly, in the committee's view, a
strong presumption should exist against the conclusion in any
particular case that the United States lacks the necessary
authority in U.S. law to implement obligations it has assumed
under treaties that have received the advice and consent of the
Senate.
IX. Resolutions of Advice and Consent to Ratification
AGREEMENT ON EXTRADITION BETWEEN THE UNITED STATES OF AMERICA AND THE
EUROPEAN UNION
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION AND A
CONDITION
The Senate advises and consents to the ratification of the
Agreement on Extradition between the United States of America
and the European Union, signed at Washington on June 25, 2003,
with a related Explanatory Note (Treaty Doc. 109-14), subject
to the declaration of section 2 and the condition of section 3.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
SECTION 3. CONDITION
The advice and consent of the Senate under section 1 is
subject to the following condition:
Report on Provisional Arrests. No later than February
1, 2010, and every February 1 for an additional four
years thereafter, the Attorney General, in coordination
with the Secretary of State, shall prepare and submit a
report to the Committee on Foreign Relations and the
Committee on the Judiciary of the Senate that contains
the following information:
1) The number of provisional arrests made by
the United States during the previous calendar
year under each bilateral extradition treaty
with a Member State of the European Union, and
a summary description of the alleged conduct
for which provisional arrest was sought;
2) The number of individuals who were
provisionally arrested by the United States
under each such treaty who were still in
custody at the end of the previous calendar
year, and a summary description of the alleged
conduct for which provisional arrest was
sought;
3) The length of time between each
provisional arrest listed under paragraph (1)
and the receipt by the United States of a
formal request for extradition; and
4) The length of time that each individual
listed under paragraph (1) was held by the
United States or an indication that they are
still in custody if that is the case.
----------
PROTOCOL TO THE EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA
AND THE REPUBLIC OF AUSTRIA
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Protocol to the Extradition Treaty between the Government of
the United States of America and the Government of the Republic
of Austria signed January 8, 1998, as contemplated by Article 3
(2) of the Agreement on Extradition between the United States
of America and the European Union signed June 25, 2003, signed
at Vienna on July 20, 2005 (Treaty Doc. 109-14), subject to the
declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
KINGDOM OF BELGIUM
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument as contemplated by Article 3 (2) of the Agreement on
Extradition between the United States of America and the
European Union signed June 25, 2003, as to the application of
the Extradition Treaty between the United States of America and
the Kingdom of Belgium signed April 27, 1987, signed at
Brussels on December 16, 2004 (Treaty Doc. 109-14), subject to
the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE
REPUBLIC OF BULGARIA
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Extradition Treaty between the Government of the United States
of America and the Government of the Republic of Bulgaria,
signed at Sofia on September 19, 2007 (Treaty Doc. 110-12),
subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
REPUBLIC OF CYPRUS
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument as contemplated by Article 3 (2) of the Agreement on
Extradition between the United States of America and the
European Union signed June 25, 2003, as to the application of
the Extradition Treaty between the Government of the United
States of America and the Government of the Republic of Cyprus
signed June 17, 1996, signed at Nicosia on January 20, 2006
(Treaty Doc. 109-14), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
SECOND SUPPLEMENTARY TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF
AMERICA AND THE CZECH REPUBLIC
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Second Supplementary Treaty on Extradition between the United
States of America and the Czech Republic, signed at Prague on
May 16, 2006 (Treaty Doc. 109-14), subject to the declaration
of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
KINGDOM OF DENMARK
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument as contemplated by Article 3 (2) of the Agreement on
Extradition between the United States of America and the
European Union signed June 25, 2003, as to the application of
the Treaty on Extradition between the United States of America
and the Kingdom of Denmark signed June 22, 1972, signed at
Copenhagen on June 23, 2005 (Treaty Doc. 109-14), subject to
the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE
REPUBLIC OF ESTONIA
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Extradition Treaty between the Government of the United States
of America and the Government of the Republic of Estonia,
signed at Tallinn on February 8, 2006 (Treaty Doc. 109-16),
subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
PROTOCOL TO THE EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA
AND THE REPUBLIC OF FINLAND
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Protocol to the Extradition Treaty between the United States of
America and Finland signed June 11, 1976, signed at Brussels on
December 16, 2004 (Treaty Doc. 109-14), subject to the
declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND FRANCE
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument as contemplated by Article 3, paragraph 2, of the
Agreement on Extradition between the United States of America
and the European Union signed June 25, 2003, as to the
application of the Extradition Treaty between United States of
America and France signed April 23, 1996, signed at The Hague
on September 30, 2004 (Treaty Doc. 109-14), subject to the
declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
SECOND SUPPLEMENTARY TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF
AMERICA AND THE FEDERAL REPUBLIC OF GERMANY
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Second Supplementary Treaty to the Treaty between the United
States of America and the Federal Republic of Germany
Concerning Extradition, signed at Washington on April 18, 2006
(Treaty Doc. 109-14), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
PROTOCOL TO THE TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF
AMERICA AND THE HELLENIC REPUBLIC
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Protocol to the Treaty on Extradition between the United States
of America and the Hellenic Republic, signed May 6, 1931, and
the Protocol thereto signed September 2, 1937, as contemplated
by Article 3 (2) of the Agreement on Extradition between the
United States of America and the European Union, signed June
25, 2003, signed at Washington on January 18, 2006 (Treaty Doc.
109-14), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
PROTOCOL TO THE TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF
AMERICA AND THE REPUBLIC OF HUNGARY
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Protocol to the Treaty between the Government of the United
States of America and the Government of the Republic of Hungary
on Extradition signed December 1, 1994, as contemplated by
Article 3 (2) of the Agreement on Extradition between the
United States of America and the European Union, signed June
25, 2003, signed at Budapest on November 15, 2005 (Treaty Doc.
109-14), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND IRELAND
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument as contemplated by Article 3 (2) of the Agreement on
Extradition between the United States of America and the
European Union signed June 25, 2003, as to the application of
the Treaty on Extradition between the United States of America
and Ireland signed July 13, 1983, signed at Dublin on July 14,
2005 (Treaty Doc. 109-14), subject to the declaration of
section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
ITALIAN REPUBLIC
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument as contemplated by Article 3 (2) of the Agreement on
Extradition between the United States of America and the
European Union signed June 25, 2003, as to the application of
the Extradition Treaty between the Government of the United
States of America and the Government of the Italian Republic
signed October 13, 1983, signed at Rome on May 3, 2006 (Treaty
Doc. 109-14), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE
REPUBLIC OF LATVIA
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Extradition Treaty between the Government of the United States
of America and the Government of the Republic of Latvia, signed
at Riga on December 7, 2005 (Treaty Doc. 109-15), subject to
the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
PROTOCOL TO THE EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA
AND THE REPUBLIC OF LITHUANIA
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Protocol on the application of the Agreement on Extradition
between the United States of America and the European Union to
the Extradition Treaty between the Government of the United
States of America and the Government of the Republic of
Lithuania, signed at Brussels on June 15, 2005 (Treaty Doc.
109-14), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
GRAND DUCHY OF LUXEMBOURG
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument as contemplated by Article 3, paragraph 2 (a) of the
Agreement on Extradition between the United States of America
and the European Union signed June 25, 2003, as to the
application of the Extradition Treaty between the Government of
the United States of America and the Government of the Grand
Duchy of Luxembourg signed October 1, 1996, signed at
Washington on February 1, 2005 (Treaty Doc. 109-14), subject to
the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION TREATY BETWEEN THE UNITED STATES
OF AMERICA AND MALTA
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Extradition Treaty between the Government of the United States
of America and the Government of Malta, signed at Valletta on
May 18, 2006, with a related exchange of letters signed the
same date (Treaty Doc. 109-17), subject to the declaration of
section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
KINGDOM OF THE NETHERLANDS
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Agreement comprising the Instrument as contemplated by Article
3 (2) of the Agreement on Extradition between the United States
of America and the European Union signed at Washington on June
25, 2003, as to the application of the Extradition Treaty
between the United States of America and the Kingdom of the
Netherlands signed at The Hague on June 24, 1980, signed at The
Hague on September 29, 2004, with a related exchange of notes
signed the same date (Treaty Doc. 109-14), subject to the
declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
REPUBLIC OF POLAND
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Agreement between the United States of America and the Republic
of Poland on the application of the Extradition Treaty between
the United States of America and the Republic of Poland signed
July 10, 1996, pursuant to Article 3 (2) of the Agreement on
Extradition between the United States of America and the
European Union signed at Washington June 25, 2003, signed at
Warsaw on June 9, 2006 (Treaty Doc. 109-14), subject to the
declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
PORTUGUESE REPUBLIC
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument between the United States of America and the
Portuguese Republic as contemplated by Article 3 (2) of the
Agreement on Extradition between the United States of America
and the European Union signed June 25, 2003, signed at
Washington on July 14, 2005 (Treaty Doc. 109-14), subject to
the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND ROMANIA
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Extradition Treaty between the United States of America and
Romania, signed at Bucharest on September 10, 2007 (Treaty Doc.
110-11), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
SLOVAK REPUBLIC
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument on Extradition between the United States of America
and the Slovak Republic, as contemplated by Article 3 (2) of
the Agreement on Extradition between the United States of
America and the European Union signed June 25, 2003, signed at
Bratislava on February 6, 2006 (Treaty Doc. 109-14), subject to
the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
REPUBLIC OF SLOVENIA
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Agreement between the Government of the United States of
America and the Government of the Republic of Slovenia
comprising the Instrument as contemplated by Article 3 (2) of
the Agreement on Extradition between the United States of
America and the European Union signed June 25, 2003, as to the
Application of the Treaty on Extradition between the United
States and the Kingdom of Serbia, signed October 25, 1901,
signed at Ljubljana on October 17, 2005 (Treaty Doc. 109-14),
subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
KINGDOM OF SPAIN
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument as contemplated by Article 3 (2) of the Agreement on
Extradition between the United States of America and the
European Union signed June 25, 2003, as to the application of
the Treaty on Extradition between the United States of America
and Spain signed May 29, 1970, and the Supplementary Treaties
on Extradition signed January 25, 1975, February 9, 1988 and
March 12, 1996, signed at Madrid on December 17, 2004 (Treaty
Doc. 109-14), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND KINGDOM
OF SWEDEN
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument as contemplated by Article 3 (2) of the Agreement on
Extradition between the United States of America and the
European Union signed June 25, 2003, as to the application of
the Convention on Extradition between the United States of
America and Sweden signed October 24, 1961 and the
Supplementary Convention on Extradition between the United
States of America and the Kingdom of Sweden signed March 14,
1983, signed at Brussels on December 16, 2004 (Treaty Doc. 109-
14), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
----------
EXTRADITION INSTRUMENT BETWEEN THE UNITED STATES OF AMERICA AND THE
UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Instrument as contemplated by Article 3 (2) of the Agreement on
Extradition between the United States of America and the
European Union signed June 25, 2003, as to the application of
the Extradition Treaty between the Government of the United
States and the Government of the United Kingdom of Great
Britain and Northern Ireland signed March 31, 2003, signed at
London on December 16, 2004, with a related exchange of notes
signed the same date (Treaty Doc. 109-14), subject to the
declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing.
X. Annex--Treaty Hearing of May 20, 2008
TREATIES
----------
TUESDAY, MAY 20, 2008
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 10:32 a.m., in
room SD-419, Dirksen Senate Office Building, Hon. Benjamin L.
Cardin, presiding.
Present: Senator Cardin.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN,
U.S. SENATOR FROM MARYLAND
Senator Cardin. The committee will come to order.
First, let me thank Senator Biden for allowing me to chair
today's hearing. It is a very important hearing dealing with
important business on extradition treaties and mutual
assistance agreements that are critically important to law
enforcement in the United States and with our friends around
the globe.
Today the committee meets to review 28 extradition treaties
and 30 mutual legal assistance treaties with the European
Union, all 27 European Union Member States, and Malaysia. These
treaties are intended to modernize and improve the scope and
operation of our existing international law enforcement
framework while, nevertheless, maintaining a legal framework
for the cooperation that is efficient, fair, and effective. The
committee recognizes the necessity and the benefits that are
derived from such treaties, which enhance cooperation between
nations especially at this critical time in our history.
The United States has entered into over 100 bilateral
extradition and mutual legal assistance treaties. Extradition
treaties are important agreements that ensure, for example,
that those who commit crimes in the United States cannot flee
to another nation in order to escape justice and punishment.
Mutual legal assistance treaties strengthen our ability to
obtain evidence and other forms of assistance from overseas in
support of our criminal investigations and prosecutions.
The structure of these treaties reflect the consistent
evolution we have been observing in Europe over the last
several decades. Instead of negotiating a separate and
different agreement with each country in Europe, as we have
done in the past, there is now one overarching agreement on
extradition and another on mutual legal assistance concluded
with the European Union, which harmonizes the content of the
bilateral agreements with every Member State.
First, there is a package of extradition agreements. Key
provisions of the new extradition agreements implementing the
U.S.-EU extradition agreement are as follows.
Outdated lists of extraditable offenses would be replaced
with a modern dual criminality standard, which would enable our
extradition treaties to cover new offenses, such as money
laundering or cybercrime, as they develop in the criminal legal
systems of both countries without having to amend the treaty
each time.
The process of authenticating documents and transmission of
provisional arrests and extradition requests would be
streamlined.
Clear authority for the temporary transfer of persons to
the requesting state that are being prosecuted or serving a
sentence in the requesting state would be provided.
A uniform approach to handling competing requests for
extradition or surrender of the same fugitive from every EU
Member State and the United States would be established.
Moreover, the United States requests for extradition put
forward to a EU Member State would have the same status as
competing requests submitted by another EU Member State.
Simplified extradition procedures would be provided in
cases in which the person sought does not contest extradition.
Transit authority would be provided in order to facilitate
the transportation of persons surrendered to a state by a third
country when that person has to travel through another State
Party in order to be surrendered.
In addition to these treaties on extradition matters, we
are also considering today 30 mutual legal assistance treaties,
also known as MLATs.
The United States has bilateral MLATs in force with 17 of
the 27 EU Member States and has signed three bilateral MLATs
with EU Member States that had not yet entered into force,
including the 2001 MLAT with Sweden, which we are considering
today. Many of the MLATs in force with EU Member States are out
of date and thus need to be modernized. Moreover, the United
States does not have MLATs in force with the remaining seven
states of Bulgaria, Denmark, Finland, Malta, Portugal,
Slovakia, and Slovenia. If the treaties we are considering
today are approved by the Senate, the United States would have,
for the first time, at least a partial or treaty-based mutual
legal assistance relationship with these seven states.
Key provisions and mechanisms in the U.S.-EU framework
agreement, which will be included in the EU Member State
instruments are as follows.
A mechanism through which it would be possible to identify
bank accounts and transactions relating to persons and entities
under criminal investigation, as specified in the individual
bilateral agreements.
States would be authorized to create and operate joint
investigative teams comprised of investigating authorities for
treaty partner countries for the purpose of facilitating
criminal investigations or prosecutions involving one or more
EU Member States and the United States where deemed appropriate
by relevant parties.
A mechanism that would facilitate the use of video
transmission technology to take witness testimony and for other
law enforcement purposes.
States Parties would be authorized to use modern
technology, such as fax and e-mail, in making requests for
legal assistance so that the transmission of requests can be
expedited.
States Parties would be authorized to provide legal
assistance to administrative authorities conducting
investigations with a view to criminal prosecution.
The final MLAT is the one law enforcement treaty under
consideration with a state outside of the EU, and that is
Malaysia. As with most MLATs, the agreement generally obligates
the Parties to assist each other in criminal investigations,
prosecutions, and related law enforcement proceedings, as well
as civil and administrative proceedings that may be related to
criminal matters.
I, particularly, want to thank our two administration
witnesses that are with us today. I know this is technical
information and it is a formal process that we go through on
the constitutional responsibilities of the United States Senate
on treaties. But these are very important issues, and I know
they just did not come about quickly. It took a lot of work--a
lot of hard work--and we appreciate the work that our two
witnesses have done in making it possible for the United States
Senate to take up these treaties today.
Susan Biniaz is a Deputy Legal Adviser of the Department of
State, and Bruce Swartz, the Deputy Assistant Attorney General
for the Criminal Division at the Department of Justice. It is
nice to have both of the Department of Justice and the
Department of State represented today at our hearing.
We will start with Ms. Biniaz.
STATEMENT OF SUSAN BINIAZ, DEPUTY LEGAL ADVISER, DEPARTMENT OF
STATE, WASHINGTON, DC
Ms. Biniaz. Thank you, Mr. Chairman. I am pleased to
testify, along with my colleague from the Justice Department,
to express the strong support of the State Department and the
administration for the Senate's prompt provision of advice and
consent to the ratification of 58 new agreements for
international law enforcement cooperation.
The agreements fall into three categories. First, there are
two agreements with the European Union (EU), one each on
extradition and mutual legal assistance. Second, there are 54
bilateral instruments, one on extradition and one on mutual
legal assistance, with each of the 27 EU Member States. Third
there are mutual legal assistance treaties, or MLATs, with
Malaysia and Sweden.
Mr. Chairman, the extradition and mutual legal assistance
agreements with the European Union and the individual Member
States are the concrete results of a dialogue that began in the
immediate aftermath of the September 11 terrorist attacks. From
these discussions came a decision to modernize and expand
existing law enforcement treaties between the U.S. and the EU
Member States. The modernization was pursued initially through
the negotiation of agreements with the EU itself, followed by
the negotiation of instruments with the individual Member
States. Both features, modernization of existing treaties and
widening the net of bilateral treaty coverage, became
particularly important when the EU in 2004 and 2007 expanded to
admit new countries, primarily from Central and Eastern Europe.
In that region, a number of U.S. extradition treaties were
antiquated and mutual legal assistance treaties were in some
cases nonexistent.
The extradition and mutual legal assistance agreements with
the EU were signed in June 2003. Thereafter, the U.S. pursued
bilateral implementing instruments, one each on extradition and
mutual legal assistance. These instruments were negotiated
first with each of the European Union's then-15 Member States
and thereafter with the 12 additional states.
We concluded individual bilateral instruments for a number
of reasons. As a matter of international law, the bilateral
instruments reflect direct sovereign consent by each EU Member
State to the changes set forth in the U.S.-EU Agreements to the
preexisting bilateral extradition or mutual legal assistance
treaty between the United States and that Member State. As a
matter of domestic law, the bilateral instruments should ensure
application of the revised extradition treaties and MLATs by
practitioners and the judiciary, both in the United States and
abroad.
Most of the bilateral extradition instruments simply
reflect the modernizing provisions contained in the U.S.-EU
Agreement. However, five of the bilateral extradition
instruments being considered by the committee today, those with
Bulgaria, Estonia, Latvia, Malta, and Romania, take the form of
comprehensive new extradition treaties. These five treaties
were transmitted to the Senate separately. Since the prior
extradition treaties with each of these countries had become
outdated, it made sense to incorporate the provisions required
by the U.S.-EU Extradition Agreement into fully modernized new
extradition treaties instead of amendments to old treaties.
As a matter of substance, what is particularly notable in
each of the comprehensive new treaties is the obligation to
extradite nationals. These five countries have become the most
recent European countries to overcome the historic obstacle
that nationality has posed in extradition relations between
much of Europe and the United States.
The bilateral mutual legal assistance instruments, like the
extradition instruments, reflect the scope of the U.S.-EU
Agreement. It should be noted that where no bilateral mutual
legal assistance treaty previously existed between the United
States and an EU Member State, as was the case with seven
Member States (Bulgaria, Denmark, Finland, Malta, Portugal,
Slovakia, and Slovenia), the new mutual legal assistance
agreements will now serve that role.
Ratification processes for both the U.S.-EU Agreements and
the individual bilateral instruments are approaching completion
in Europe. I am pleased to report that 22 of the 27 EU Member
States have completed their domestic procedures to bring the
agreements into force. We expect the remainder to do so in the
coming months, and prompt Senate action on this package of
agreements would be very helpful in accelerating the process of
ratification in European Union Member States. The U.S.-EU
Agreements and the completed bilateral instruments may enter
into force only following completion of all ratification
procedures by all national governments.
In conclusion, Mr. Chairman, the U.S.-EU Agreements and
related bilateral instruments before the committee today would
result in a historic and comprehensive modernization of the
U.S. law enforcement relationship with the 27 members of the
EU, and would create an institutional relationship with the EU
itself in the law enforcement area. These agreements represent
an opportunity to bring an important area of trans-Atlantic
cooperation into the 21st century.
Now, turning to the Mutual Legal Assistance Treaty with
Malaysia, while this agreement may not have the historic
significance and law enforcement impact of the U.S.-EU
agreements, it is, nonetheless, an important and necessary tool
to help authorities in the United States and Malaysia
investigate and prosecute terrorism and organized crime. I have
addressed this treaty more fully in my written testimony and
would be happy to address any questions you may have on this or
on any of the other agreements before the committee.
Thank you.
[The prepared statement of Ms. Biniaz follows:]
Prepared Statement of Susan Biniaz, Deputy Legal Adviser, U.S.
Department of State, Washington, DC
Mr. Chairman, I am pleased to testify, along with my colleague from
the Department of Justice, to express the strong support of the
Department of State and the administration for the Senate's prompt
provision of advice and consent to ratification of 57 new agreements
for international law enforcement cooperation. The agreements fall into
three categories:
Two agreements with the European Union (EU), one each on
extradition and mutual legal assistance;
Fifty-four bilateral instruments, done pursuant to the U.S.-
EU Agreements, one on extradition and one on mutual legal
assistance, with each of the 27 EU Member States; and
A mutual legal assistance treaty (MLAT) with Malaysia.
The Department of State greatly appreciates this opportunity to
move toward ratification of these important treaties. I will address
the extradition and mutual legal assistance agreements with the
European Union and the bilateral instruments with EU Member States
first, followed by the MLAT with Malaysia.
EXTRADITION AND MUTUAL LEGAL ASSISTANCE AGREEMENTS WITH THE EUROPEAN
UNION
Mr. Chairman, the extradition and mutual legal assistance
agreements between the United States and the European Union are the
first law enforcement treaties our government has ever concluded with
this important international body. They are concrete results of a
dialogue that began between our government and the EU in the immediate
aftermath of the September 11, 2001, attacks, as part of a wide-ranging
exploration of ways of improving trans-Atlantic cooperation against
terrorism.
From these discussions came a decision to modernize and expand
existing law enforcement treaties between the United States and the
Member States of the European Union. It was agreed to pursue this
modernization initially through the negotiation of agreements with the
EU itself, to be followed by instruments with the individual Member
States. Both features--modernization of existing treaties and widening
the net of bilateral treaty coverage--became particularly important
when the EU in 2004 and 2007 expanded to admit new countries primarily
from Central and Eastern Europe, a region where a number of U.S.
extradition treaties were antiquated and mutual legal assistance
treaties, in some cases, were nonexistent.
Among the most important features of the U.S.-EU Extradition
Agreement is a provision replacing outdated ``lists'' of extraditable
offenses with the ``dual criminality'' approach. This modern approach
will now apply to our extradition relations with all the countries of
the European Union. It allows extradition for a broader range of
offenses, and also will encompass newer ones, e.g. cybercrime, as they
develop, without the need to amend the underlying treaties. The
Extradition Agreement additionally contains a series of significant
improvements to expedite the extradition process, which will be
described by my Department of Justice colleague.
The U.S.-EU Mutual Legal Assistance Agreement likewise contains
several innovations that should prove of value to U.S. prosecutors and
investigators. It creates an improved mechanism for obtaining bank
information from an EU Member State, delineates a legal framework for
the use of new techniques such as joint investigative teams, and
establishes a comprehensive and uniform framework for limitations on
the use of personal data. The Department of Justice testimony also will
describe these features in greater detail.
EXTRADITION AND MUTUAL LEGAL ASSISTANCE INSTRUMENTS WITH EU MEMBER
STATES
The Extradition and Mutual Legal Assistant Agreements with the EU
were signed in June 2003. Thereafter, the United States pursued
bilateral implementing instruments, one each on extradition and mutual
legal assistance. These instruments were negotiated first with each of
the European Union's then-15 Member States and thereafter with the 12
additional states that joined in two groups, in 2004 and in 2007.
The conclusion of individual bilateral instruments was undertaken
for important reasons. As a matter of international law, the bilateral
instruments reflect direct sovereign consent by each EU Member State to
the changes required by the U.S.-EU Agreements to the preexisting
bilateral extradition or mutual legal assistance treaty between the
United States and that Member State. As a matter of domestic law, the
bilateral instruments should ensure application of the revised
extradition treaties and MLATs by practitioners and the judiciary, both
in the United States and abroad.
Most of the bilateral extradition instruments simply reflect the
modernizing provisions contained in the U.S.-EU Agreement. However,
five of the bilateral extradition instruments being considered by the
committee today--those with Bulgaria, Estonia, Latvia, Malta, and
Romania--take the form of comprehensive new extradition treaties.
(These were transmitted to the Senate separately.) Since the prior
extradition treaties with each of these countries had become outdated,
it made sense to incorporate the provisions required by the U.S.-EU
Extradition Agreement into fully modernized new extradition treaties
instead of amendments to the existing treaties.
As a matter of substance, what is particularly notable in each of
the comprehensive new treaties is the obligation undertaken to
extradite nationals. With respect to Estonia and Romania, this
obligation is unqualified. In the case of Latvia, its government may
request that a Latvian national serve a U.S.-imposed sentence in a
Latvian prison, pursuant to a prisoner transfer treaty. With regard to
Malta and Bulgaria, their nationals may be extradited for 30 specified
offenses corresponding essentially to those offenses for which they
also may be surrendered for trial to European Union Member States.
These countries thus have become the most recent European countries to
overcome the historic obstacle that nationality has posed in
extradition relations between much of Europe and the United States.
The bilateral mutual legal assistance instruments, like the
extradition instruments, reflect the scope of the U.S.-EU MLA
Agreement. Notably, where no bilateral law enforcement treaty
previously existed between the United States and the EU Member State--
as is the case with seven Member States in the mutual legal assistance
area (Bulgaria, Denmark, Finland, Malta, Portugal, Slovakia, and
Slovenia)--the mutual legal assistance instruments, while not serving
as comprehensive MLATs, will ensure that the obligations arising from
the U.S.-EU Agreement are applied between the United States and the EU
Member State.
Ratification processes for both the U.S.-EU Agreements and for the
bilateral instruments are approaching completion in Europe. While the
foreign party to the U.S.-EU Agreements is the European Union itself,
most EU Member States nonetheless are required or have chosen under
their domestic constitutional laws to ratify both the U.S.-EU
Agreements and the applicable bilateral instruments. I am pleased to
report that 22 of the 27 EU Member States have completed their domestic
procedures to bring the agreements into force. We expect the remainder
to do so in coming months, and prompt Senate action on this package of
agreements would be very helpful in accelerating the process of
ratifications in European Union Member States. The U.S.-EU Agreements
and the completed bilateral instruments may enter into force only
following completion of all ratification procedures by all national
governments.
MUTUAL LEGAL ASSISTANCE TREATY WITH MALAYSIA
The Mutual Legal Assistance Treaty with Malaysia does not have the
historic significance and law enforcement impact of the U.S.-EU
agreements, but it is nonetheless important. Malaysia is located at the
heart of a region of the world where our law enforcement authorities
are working every day in partnership with local governments to combat
terrorism and organized crime. The MLAT will be a useful tool to help
authorities in both the United States and Malaysia investigate and
prosecute those offenses. It also will serve--indeed, it has already
served--as a model for ongoing negotiations between the United States
and other nations in that crucial region.
For the most part, the content of the MLAT with Malaysia is similar
to that of the many other MLATs that this committee has reviewed in
recent decades. It provides broad authority for each party to assist
the other in gathering evidence necessary for criminal investigations
and prosecutions.
One of the less common features of this MLAT is the provision
allowing either party to refuse assistance in the absence of so-called
``dual criminality''--in other words, if the conduct being investigated
or prosecuted would not also constitute an offense in the state
receiving the request punishable by a maximum sentence of at least 1
year's imprisonment. Unlike extradition treaties, most MLATs do not
have, and do not require, such a provision, but it is not unprecedented
and we view it as a workable approach. To provide sufficient certainty
that cooperation will be available for the range of requests we are
likely to submit, our negotiators undertook two important steps: First,
they conducted a review and comparison of the criminal codes of the two
countries and concluded that there was sufficient commonality between
the two that U.S. authorities would be able to obtain assistance in a
broad range of matters. In addition, the negotiators prepared and
included an annex to the treaty that outlines a set of offenses for
which assistance will not be denied on the ground of absence of dual
criminality. This annex includes the types of offenses for which U.S.
prosecutors generally seek assistance abroad.
Mr. Chairman, I urge that the committee give prompt and favorable
consideration to these agreements.
Senator Cardin. Thank you, Ms. Biniaz.
Mr. Swartz.
STATEMENT OF BRUCE SWARTZ, DEPUTY ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Swartz. Mr. Chairman and members of the committee,
thank you for this opportunity to present the views of the
Department of Justice on the U.S.-EU extradition and mutual
legal assistance treaties, the instruments that implement each
of those treaties at a bilateral level with each EU Member
State, and the mutual legal assistance treaty with Malaysia.
As you note, Mr. Chairman, these are critically important
treaties. Each one of them directly advances the national
security and law enforcement interests of the United States.
Turning first to the U.S.-EU extradition framework decision
and the framework treaty and the mutual legal assistance treaty
that follows. With regard to the extradition treaty and the
bilateral instruments under that treaty, as you note, Mr.
Chairman, this treaty represents three key advances.
First, it replaces the older-list treaty approach found in
many of our older extradition treaties with the European Union
and substitutes in its place a dual criminality approach, which
means, as you note, that we will be able to go forward with the
extraditions on crimes such as cybercrime, intellectual
property offenses, and importantly, counterterrorism offenses
that might not have been possible under the old-list treaty
approach.
Second, the EU-U.S. Extradition Treaty replaces the
antiquated competing extradition request provisions and
substitutes in its place an analysis that will consider all
relevant factors. And this is particularly important, as you
note, with regard to the European arrest warrant since it makes
clear that United States requests will be on a par with
European arrest warrant requests as between European Member
States and will not be automatically subordinated to them.
And third, the extradition framework treaty puts in place a
number of procedural improvements that will help ensure that
extraditions are not denied on purely procedural grounds. And
those include, as you note, temporary surrender provisions,
waiver of extradition, transitive prisoners, a streamlining of
provisional arrest, particularly through Justice Ministry and
Interpol channels, and transmission and authentication of
documents.
In addition to all of these features, as my colleague from
the State Department has noted, we have also negotiated five
new bilateral extradition treaties, each of which accomplishes
the U.S. priority of ensuring that nationals can be extradited
from those countries.
Turning next to the U.S.-EU Mutual Legal Assistance Treaty
and the bilateral instruments under that, here, too, there are
important advances. As you note, we had mutual legal assistance
treaties with all but seven of the EU Member States. Our
objective here was to ensure that we supplemented the treaties
that we had and established relationships with the countries
where we did not have treaties with regard to new forms of
cooperation and that we improve the modalities under the
existing forms of cooperation. And here, too, there are three
important new advances represented by the framework U.S.-EU
Mutual Legal Assistance Treaty. Each of these will aid our
counterterrorism and law enforcement efforts.
The first of these is the identification, as you note, of
previously unknown bank accounts and related financial
information, a significant advance we expect that will be
extremely useful in terrorism and money laundering
investigations.
The second is the possibility of the creation of joint
investigative teams which we expect will advance and expedite
our criminal investigations and our counterterrorism
investigations.
The third is the possibility for videoconferencing in
criminal investigations and proceedings, a step that we think
will greatly expedite the transmission of evidence and
investigative information.
In addition to those three advances, as I noted, the
framework treaty also establishes modalities that will improve
our existing cooperation, including making clear that the
assistance can be provided with regard to regulatory agencies
insofar as they have statutory authority to conduct
investigations with a view toward criminal referrals and are
doing so with regard to the request in issue.
Second, in this regard in terms of improving modalities, it
is made clear that information that is provided could be used
at a minimum in connection with criminal proceedings and where
appropriate to ensure that public safety is secured, if there
is an immediate threat, and finally with regard to
administrative proceedings under the same conditions regarding
possible referral for criminal prosecution.
And finally under modalities, the framework treaty makes
clear that expedition of transmission of requests by fax and e-
mail is also possible, again speeding the vital transmission of
this information.
Finally, turning to the Malaysia Mutual Legal Assistance
Treaty, as you note, this is also a critically important treaty
precisely because it involves an important partner in a very
important part of the world. Under Malaysian law, no mutual
legal assistance was possible for a criminal investigation
prior to the beginning of court proceedings, that is, prior to
this treaty. Therefore, this treaty has now secured the
possibility of cooperation with Malaysia on critical
counterterrorism and transnational crime investigations.
In sum then, we appreciate, Mr. Chairman, the committee's
support for these important treaties. We urge that advice and
consent be given to them.
And I look forward to answering any questions you might
have.
Thank you.
[The prepared statement of Mr. Swartz follows:]
Prepared Statement of Bruce C. Swartz, Deputy Assistant Attorney
General, Criminal Division, Department of Justice, Washington, DC
Mr. Chairman and members of the committee, I am pleased to appear
before you today to present the views of the Department of Justice on
the extradition and mutual legal assistance agreements between the
United States and the European Union (EU), the instruments that
implement them at the bilateral level with each EU Member State, and a
mutual legal assistance treaty with Malaysia. These historic treaties
directly advance the interests of the United States in fighting
terrorism and transnational crime.
At the outset, I wish to note that the decision to proceed with the
negotiation of law enforcement treaties such as these is made jointly
by the Departments of State and Justice, after careful consideration of
our international law enforcement priorities. The Departments of
Justice and State also participated together in the negotiation of each
of these treaties, and we worked closely with the Department of the
Treasury, the Securities and Exchange Commission (SEC) and the Federal
Trade Commission (FTC) in negotiating the articles of the U.S.-EU
Mutual Legal Assistance Agreement that relate to their respective
functions. We join the Department of State and these other agencies
today in urging the committee to report favorably to the Senate and
recommend its advice and consent to ratification.
The Departments of Justice and State have prepared and submitted to
the committee detailed analyses of the mutual legal assistance and
extradition treaties in the Letter of Submittal. In my testimony today,
I will concentrate on why these extradition and mutual legal assistance
treaties are important instruments for United States law enforcement
agencies engaged in investigating and prosecuting terrorism and other
serious criminal offenses.
My colleague from the Department of State, Ms. Biniaz, has already
touched upon the principal benefits flowing from the U.S.-EU
Agreements. I will go into greater detail in describing the objectives
of the United States in negotiating the agreements with the EU, and the
provisions that resulted.
THE U.S.-EU EXTRADITION AGREEMENT AND ITS BILATERAL IMPLEMENTING
INSTRUMENTS
With respect to the extradition agreement, at this moment, prior to
the entry into force of the U.S.-EU Agreement and bilateral
implementing treaties with the 27 EU Member States, the oldest of our
existing extradition treaties with EU Member States are 100 years old
or older (Slovenia, which dates to 1901 and Portugal, signed in 1908).
Ten others signed in the 1920s through 1970s (Bulgaria, the Czech
Republic, Denmark, Finland, Greece, Romania, and the Slovak Republic)
also contain a significant number of antiquated provisions. As a
result, one of the principal negotiating objectives of the United
States was to arrive--in a single negotiation--at an extradition treaty
governing EU Member States that would eliminate obsolete provisions in
favor of more effective, modern provisions.
At the same time, many of our existing bilateral extradition
treaties with EU Member States were more modern treaties that did not
require major revision, and which already reflected the particular
needs of the U.S. and the Member State concerned. What is more, the
existing bilateral extradition treaties had been negotiated
individually with each Member State and, naturally, were not identical;
some contained variations that were more progressive than others.
Therefore, another negotiating objective for the United States was to
ensure that the process of negotiating with the European Union as a
whole did not result in provisions that, while reaching consensus among
all EU Member States, who were being consulted regularly during the
negotiation, might undermine stronger existing provisions between the
United States and some Member States.
The third principal objective was to obtain agreement with the
European Union on provisions that would represent advances over the
provisions of even our most modern bilateral extradition treaties with
Member States. I will discuss the manner in which these objectives were
reached in turn.
The updating of our oldest extradition treaties was accomplished in
large part by replacing out-of-date provisions with more modern
formulations contained in the U.S.-EU Agreement. In particular, the
oldest treaties define extraditable offenses by reference to a list of
crimes enumerated in the treaty itself. Such an approach limits
extradition for newly emerging forms of criminality that the United
States has a strong interest in pursuing, such as antitrust offenses,
cybercrime, and environmental offenses. Through application of the
Agreement and the subsequently concluded implementation instruments
that directly amend the bilateral treaties, these old provisions are
replaced by modern ``dual criminality'' provisions. This means that the
obligation to extradite applies to all offenses that are punishable in
both countries by a maximum term of imprisonment of more than 1 year;
which is a significant improvement since extradition will be possible
in future with respect to the broadest possible range of serious
offenses, without the need to repeatedly update treaties as new forms
of criminality are recognized. The dual criminality provision also
contemplates extradition for extraterritorial offenses. For the United
States, extraterritorial jurisdiction is important in two areas of
particular concern: Drug trafficking and terrorism.
The Extradition Agreement also incorporates a variety of procedural
improvements that update not only the oldest extradition treaties, but
also a number of more recent treaties that do not already contain such
provisions. For example, the Agreement contains a ``temporary
surrender'' provision, which allows a person found extraditable, but
already in custody abroad on another charge, to be temporarily
surrendered for purposes of trial. Absent temporary surrender
provisions, we face the problem of delaying the fugitive's surrender,
sometimes for many years, while the fugitive serves out a sentence in
another country. During this time, the case against the fugitive
becomes stale, and the victims await vindication for the crimes against
them.
The Extradition Agreement also allows the fugitive to waive
extradition, or otherwise agree to immediate surrender, thereby
substantially speeding up the fugitive's return in uncontested cases.
It provides for transit of prisoners through the United States and EU
Member States, a provision that can be of great practical importance
where a surrendered fugitive must be transported to the United States
from a country in Africa or Asia and commercial airlines only offer
flights transiting Europe, or where the surrendered fugitive is being
transported from Latin America to an European Union Member State
through the United States. It also streamlines the channels for seeking
``provisional arrest''--the process by which a fugitive can be
immediately detained while the documents in support of extradition are
prepared, translated, and submitted through the diplomatic channel--and
the procedures for supplementing an extradition request that already
has been presented.
To reach the second objective I mentioned--ensuring that the
provisions of the U.S.-EU Agreement do not inadvertently weaken
existing bilateral treaties which go farther than the provisions in the
Extradition Agreement--U.S. negotiators carefully reviewed existing
bilateral treaties with Member States and drafted the scope provision
of article 3(1) to ensure that the substantive articles apply only in
order to either replace outmoded provisions, add useful provisions to
treaties that did not already have them, or be even more advantageous
than the modern provisions currently in place. As to replacing outmoded
provisions, for example, article 3(1)(a) provides that article 4's
``dual criminality'' requirement replaces the provisions of antiquated
``list'' treaties; dual criminality provisions in modern U.S.
extradition treaties with EU Member States remain unaffected. As to
adding useful provisions, for instance, article 3(1)(f) adds the
possibility of temporary surrender to those treaties that do not
already permit it.
Finally, article 3(1)'s terms provide that certain provisions that
are more favorable than those found in our current treaties replace the
prior formulation. For example, article 10(2) provides that where an EU
Member State receives a request for extradition from the United States
as well as a request for surrender of the same fugitive from another EU
Member State pursuant to the European Arrest Warrant, the EU Member
State holding the fugitive shall make its determination as to which
request should receive priority based on a consideration of all
relevant factors, rather than giving automatic precedence to the
request from the EU Member State. This was a very important point for
the U.S., because many EU Member States do not extradite their
nationals. Were the EU to decide that, as an internal matter, European
Arrest Warrant requests from other Member States should receive
priority over foreign extradition requests, a fugitive who is a
national of another EU Member State could be surrendered to his country
of nationality--even for less serious charges than those for which the
U.S. might seek his extradition--and we would not be able to
subsequently extradite him from the country of nationality. This
provision, in combination with article 3(1)(g), makes clear that such a
result would not be consistent with the international obligations set
forth in the Agreement.
Another provision that represents an advance over many modern
treaties is article 7, which addresses transmission of documents
following provisional arrest of a fugitive, an event that triggers a
treaty deadline for receipt of the documents in support of extradition,
which, if not met, will result in the fugitive's release. The Agreement
provides that once the extradition documents have been received by the
Member State's embassy in the U.S., the treaty deadline for receipt of
the documents is considered satisfied. This is the same standard that
the United States already applies when receiving extradition documents
from other countries, and we will now benefit from the same treatment
when we make extradition requests. Pursuant to article 3(1)(d), this
provision is added to all U.S. extradition treaties with EU Member
States.
Last, articles 3(1)(b) and 5(2) of the Agreement greatly simplify
the authentication requirements for extradition documents to enable
them to be admitted in evidence at extradition hearings. Over the
years, the authentication requirements of extradition treaties,
requiring extradition documents to be certified at embassies to permit
them to be admitted in evidence in extradition hearings, had become
increasingly time consuming to satisfy, to the point that doing so
entailed some risk that the fugitive might be released or flee during
the time it took to complete these requirements. The new U.S.-EU
provision specifies that documents bearing the seal or certificate of
the justice or foreign ministry of the State seeking extradition are
admissible in extradition proceedings, thereby significantly
streamlining the process, yet retaining sufficient assurance of the
reliability of the documentation received.
Of course, in the case of Bulgaria, Estonia, Latvia, Malta, and
Romania with whom we have negotiated completely new bilateral
extradition treaties, the provisions of the U.S.-EU Extradition
Agreement are incorporated. All five of these complete treaties also
provide for the extradition of nationals, a U.S. negotiating priority.
THE U.S.-EU MUTUAL LEGAL ASSISTANCE AGREEMENT AND ITS BILATERAL
IMPLEMENTING INSTRUMENTS
With respect to mutual legal assistance, the situation at the
outset of negotiations was somewhat different from that of extradition.
We have a Mutual Legal Assistance Treaty (MLAT) either signed or
already in force with all but seven EU Member States (the seven being
Bulgaria, Denmark, Finland, Malta, Portugal, the Slovak Republic, and
Slovenia). Where we have not concluded an MLAT, cooperation is being
provided pursuant to domestic mutual legal assistance statutes. The 20
MLATs signed or already in force are modern instruments, with the
oldest being our 1981 treaty with the Netherlands. Thus, in the mutual
legal assistance area, the principal objective was not to update out-
of-date treaties, but rather to supplement our MLATs with new forms of
cooperation not expressly provided for to date, and, in some cases, to
provide more flexible and beneficial modalities in carrying out
cooperation.
Accordingly, the U.S.-EU Agreement contains three new types of
provisions not previously set forth in U.S. MLATs, meaning that, while
these forms of assistance might be possible as long as the domestic law
of the U.S. and the EU Member State do not prohibit the assistance,
there was previously no specific obligation to make such assistance
available.
The first of these provisions is the identification of bank
information pursuant to article 4. While our existing MLATs already
provide for the production of bank records needed in money laundering,
terrorism financing and many other kinds of investigations, as well as
for the identification, freezing, and forfeiture of proceeds of crime
laundered through banks, MLATs do not currently provide a procedure for
locating previously unidentified bank accounts, on the basis of, for
example, the name and date of birth of the account holder. Authority to
identify such banking information for terrorism and money laundering
investigations was established for the United States in the USA PATRIOT
Act of 2001, and for the European Union in its 2000 MLAT among EU
Member States. The U.S. and EU both having established this power, we
were able to formulate a provision that will facilitate the
identification of such information in requests for cooperation made
between us. Experience has shown that terrorists and money launderers
often use U.S. and European banks for their purposes. Article 4,
therefore, provides a powerful law enforcement tool that will greatly
aid us in identifying where terrorists and money launderers are
secreting their funds, following which we can take appropriate action
using existing international cooperation treaties and laws. While the
assistance the U.S. provides to EU Member States will--in accordance
with the USA PATRIOT Act's limited grant of authority--be restricted to
cases involving terrorism and money laundering activities, a number of
EU Member States agreed to make this form of cooperation available to
the U.S. with respect to an even broader range of criminal activities.
Second, article 5 of the Agreement authorizes the establishment of
joint investigative teams for purposes of coordinating closely in the
ever increasing number of international terrorism and organized crime
investigations that require simultaneous action in more than one
country. While U.S. investigative agencies have long worked
cooperatively with their foreign counterparts in investigations having
international aspects, the extent of joint activity has at times been
limited absent this kind of provision. Once the Agreement enters into
force, we will have a framework that will enable a fuller integration
of investigative activities with our European partners where we deem it
important to do so.
Finally, article 6 facilitates the use of modern video-conferencing
technology in criminal investigations and proceedings, authorizing its
use for taking testimony or other investigative uses. Already in use
regularly in domestic U.S. criminal cases for some pre and post-trial
hearings, to take witness statements, and for other investigative
actions, video-conferencing technology is used less frequently at the
international level, where many countries have more limited experience
with it. Its increased use will benefit the United States, by
permitting investigative statements to be taken abroad, with
investigators and prosecutors, or even incarcerated defendants in the
U.S., being able to participate more meaningfully via use of video-
conferencing technology if participation in person is not feasible. In
this area as well, in the past, the United States has facilitated the
taking of testimony via video link from witnesses in the United States
for use in foreign criminal proceedings. However, absent a specific
provision of this type, some EU Member States would not be able to
authorize a video feed to the United States during witness questioning.
This provision will therefore provide greater flexibility in
international criminal cases.
I also mentioned that a number of provisions of the U.S.-EU
Agreement provide more favorable modalities to be applied in carrying
out cooperation than were previously available under some of our MLATs.
I would like to mention the two principal articles in this regard,
pertaining to administrative authorities and use limitations.
First, pursuant to article 8 of the Agreement, the U.S. and EU
Member States must provide assistance to regulatory agencies with
statutory authority to conduct investigations with a view to referral
for purposes of prosecution. To an increasing extent, Federal agencies
such as the SEC, the Commodity Futures Trading Commission, and the FTC
are conducting the initial investigation in serious fraud cases. While
some prior MLATs permit agencies such as these to receive assistance,
some foreign law enforcement partners have declined to entertain
requests which do not originate from criminal courts, prosecutors or
criminal investigative agencies. As a result of this provision, U.S.
regulatory agencies engaged in investigations that could result in
referral to the Department of Justice for criminal prosecution will be
entitled to cooperation from all EU Member States and, likewise, will
be able to use the information obtained in their regulatory enforcement
proceedings even if the case does not ultimately result in criminal
referral. Of course, to the extent EU Member States have administrative
components engaged in analogous investigations they will receive
reciprocal cooperation.
Second, article 9 of the MLAT allows the information and evidence
provided in response to a mutual legal assistance request to be used,
at a minimum, for any criminal investigation or proceeding, for the
purpose of preventing immediate and serious threats to public security,
and for use in the regulatory proceedings I just described. This
formulation is an advance over some older use limitation formulations,
which often set out a cumbersome procedure by which use was initially
limited to the purposes set forth in the request, and permission for
any other subsequent use had to be sought and granted. The new
formulation recognizes that in cases involving immediate threats to
public security, there is not sufficient time to ask permission for a
different use, and there is no sound reason to deny permission where
the evidence and information provided is pertinent to other criminal
conduct not known at the time the MLAT request was drafted.
MUTUAL LEGAL ASSISTANCE TREATY WITH MALAYSIA
In addition to the treaties with the EU, the Department of Justice
urges the committee to give favorable consideration to the Mutual Legal
Assistance Treaty with Malaysia. Under Malaysian law, in the absence of
this treaty, there is no obligation to provide assistance to the United
States in investigations prior to the initiation of court proceedings.
With the entry into force of the MLAT, there will be a mutual
obligation to provide assistance similar to what is found in other U.S.
MLATs.
CONCLUSION
In conclusion, Mr. Chairman, we appreciate the committee's support
in our efforts to strengthen the framework of treaties that assist us
in combating international crime. For the Department of Justice, modern
extradition and mutual assistance treaties are particularly critical
law enforcement tools. Moreover, EU Member States are among our closest
law enforcement partners, and we are seeing a continual increase in the
number and complexity of mutual legal assistance requests flowing
between us. To the extent that we can update our existing cooperation
agreements and arrangements in a way that enables cooperation to be
more efficient and effective, we are doing ourselves, and each other, a
great service. Accordingly, we join the State Department in urging the
prompt and favorable consideration of these law enforcement treaties.
Senator Cardin. Well, again, let me thank both of you for
your testimony.
Ms. Biniaz, you indicated that, I think, 22 of the 27
European countries have taken steps to implement these
agreements. Is there a problem in the other five states? Are
there any anticipated issues that we should be aware of--of
controversy surrounding the approvals among the 27 European
countries?
Ms. Biniaz. I do not think we anticipate any problems. I
can give a quick rundown of the countries and where things
stand.
The first one would be Belgium. Belgium required
implementing legislation in order to ratify this package, and
as of mid-February, it was being reviewed by the Conseil d'Etat
prior to being sent to Parliament. The prediction by the EU
Presidency is that the legislation will pass by June, and
Belgium would then be in a position to ratify the package.
The next country is Cyprus. The ratification package or
instruments are with the Parliament's legal affairs committee.
There was a second reading of the bill a couple of weeks ago,
and we anticipate further action in the near future. In fact,
it may have happened over the weekend. We need to check that.
Greece is the next country. The Justice Ministry has begun
drafting the implementing legislation that is necessary to be
submitted to Parliament after a lengthy review by parliamentary
experts. On that one, we do not have any sort of indication of
timing, but do not anticipate any particular problem.
The fourth country is Italy. As you know, a new government
was formed in April, so the ratification process is not
expected to be imminent but it is on track.
Finally, the Netherlands. The package is scheduled for
plenary debate before the lower House of Parliament during the
week of May 26. There are some smaller opposition parties which
will raise questions at that time, but those questions are not
expected to be about the package itself. They are expected to
be raising concerns about aspects of U.S. foreign policy
related to the war on terror, and this is just an opportunity
to raise those questions. But they do not relate to the package
of treaties before the Parliament.
In sum, we do not expect a problem with any of the five
remaining countries.
Thank you.
Senator Cardin. And with the new government in Italy, have
you gotten any indication of any concerns about perhaps
reopening this agreement?
Ms. Biniaz. I am told we have no indication of any
problems. If we do, we will get back to you.
Senator Cardin. So you anticipate that these agreements
will be approved in all the European countries.
Now, what is the status of Malaysian support for the MLAT?
Ms. Biniaz. They are already in a position to exchange
instruments of ratification. So my understanding is that they
are just waiting for us.
Senator Cardin. Both of you mentioned the extradition of
nationals, and I know it applies in Estonia, Romania, and
Latvia. Is there a concern that American nationals may be
subject to this extradition which may not be in what the United
States would otherwise want to see happen to American
nationals?
Ms. Biniaz. I can give an answer and it can be elaborated
by Justice.
We do not generally conclude extradition treaties unless we
have fully examined the country's legal system and ensured that
human rights issues, including due process issues, are up to
our standards, and that we would be comfortable sending U.S.
nationals to those countries.
In an extreme case, it is always at the discretion of the
Secretary of State whether to extradite persons from the United
States. So I think we have no reason to be concerned.
Senator Cardin. So you are saying that even with the
countries that we do have these agreements with, there is no
100 percent guarantee that those countries would extradite
their nationals to the United States. Is that also true?
Ms. Biniaz. Well, it depends on the terms of the given
extradition treaty.
Senator Cardin. In regards to Romania or Latvia or Estonia?
Ms. Biniaz. Yes. There is an obligation in those new
treaties to extradite regardless of nationality.
Senator Cardin. Would that also not be true then with the
United States? You indicated the Secretary could prevent the
extradition of an American to Latvia.
Ms. Biniaz. I was giving an example of an extreme case
where there happened to be an issue, but my general point was
that we would not enter into an extradition treaty unless we
were comfortable with sending U.S. nationals there, and the
other country, obviously, has to be comfortable sending its
nationals to the United States because those are the terms of
the treaty.
Senator Cardin. So the bottom line is that an American
national would be subject to extradition.
Ms. Biniaz. Yes; which is the way it is generally under our
extradition treaties.
Senator Cardin. And you feel comfortable with the systems
today in Romania and Latvia and Estonia that Americans would be
protected against the concerns we have in extradition.
Ms. Biniaz. Yes.
Senator Cardin. Thank you.
Mr. Swartz, you mentioned joint investigations, which I
find intriguing. We will be taking up on Thursday in the
Judiciary Committee giving the Justice Department additional
tools in dealing with exploiting of children, which is
legislation that has strong bipartisan support. I looked at
offering amendments to give the Justice Department more
authority to deal with other countries because a lot of the
exploitation issues are international. Under these agreements,
would it be easier for you to work joint investigations on
exploitation issues with the European countries?
Mr. Swartz. Mr. Chairman, we believe that it would be
easier. The United States has long favored the creation, on an
ad hoc basis, of joint investigative teams. The great advantage
of having this provision in the framework treaty is that it
authorizes EU Member States, some of whom have felt that they
needed such authorization in terms of having it on a treaty
basis, to go forward as well. But we believe that our work has
always benefited by the possibility of working jointly and
engaging in the informal sharing of information that can then
be followed up with the formal request through the mutual legal
assistance process. So we look forward to any opportunity to
engage in joint work with our colleagues on cases that are of
joint importance.
Senator Cardin. And we do have international commitments in
regards to trafficking which, I take it, the Justice Department
is working in cooperation with other countries. The Internet
issues involve more complicated issues because the legal
systems are different as to the protection of the Internet.
Actually there is probably more protection in the United States
than in most of the European countries. I am just trying to get
a grip as to whether these agreements will have any impact on
trying to deal with those international forces that are preying
on our children.
Mr. Swartz. Mr. Chairman, we expect that it will. We have
worked quite closely on child exploitation cases with European
partners already, and as the chairman is aware, we have engaged
in joint arrests, coordinated takedowns of organizations
involving child exploitation. We expect that this particular
agreement, by making it clear that such joint investigative
teams are not only permissible on an ad hoc basis but to be
encouraged and are now incorporated in the treaty framework,
will make countries that might have otherwise found it more
difficult to cooperate or to form such teams willing to do so.
But we are fully committed as a Department to the pursuit of
such cases and to continue our work singly and jointly with
other countries to try and deal with the very serious problem
of child exploitation.
Senator Cardin. Thank you.
I want to get a better understanding on the transport
through one of these states when the surrender occurred
outside. What I am thinking about is circumstances where
perhaps we have a person who has surrendered in the Middle East
and we are trying to bring the person back to the United States
and we have to travel through several European countries'
airspace that are subject to these agreements.
Can you just explain to me whether we are protected? Do we
preauthorization in order to do that under these agreements, or
is there still a process it needs to go through in order to
transport someone who has surrendered in the Middle East to the
United States to travel through air to our country?
Mr. Swartz. Mr. Chairman, Article 12 of the extradition
agreement between the United States and the European Union
covers the question of transit and establishes both the
principle of transit but also a procedure to be followed to
ensure that transit is permissible. In particular, Article 12.2
states that a request for transit shall be made through the
diplomatic channel or directly through the Justice Ministry of
the Member State, and Interpol can also be used to facilitate
such a request. And the request itself makes clear that it is
identifying not only the person being transited but the
description of the facts of the case, and that essentially that
he or she is detained in custody during the period of transit.
So, yes; there is a procedure, and there is also a procedure in
12.3 when there is an unscheduled landing that takes place.
Senator Cardin. I understand notification, but would these
agreements provide preauthorization so that we have their
permission to do it? I understand we may have to follow certain
guidelines in order to achieve and notify what we are doing and
we may have an issue of landing in their country. But is there
an implied authorization if we have to transport over their
airspace?
Mr. Swartz. Only in the cases in which an individual is
being transited and lands in that country. The unauthorized
landings--we have a separate procedure for that.
Senator Cardin. So if they travel over the airspace, you do
have preauthorization? No; you do not. Yes, no?
Mr. Swartz. For traveling through the airspace, you do not
need preauthorization.
Senator Cardin. You do not. Thank you for that.
Let me talk a little bit about the bank information, which
is new. Certainly I think we all understand how important
information is in investigations concerning bank accounts. But
as you know, there is a concern in Congress on privacy, and I
just would like to know a little bit more about how you
envision this provision being implemented, particularly
respecting the legitimate privacy rights of Americans to know
that their bank records are not being just shared
inappropriately. Whoever feels like answering that.
Mr. Swartz. I guess I feel like answering that.
Mr. Chairman, I am happy to say that the concerns with
regard to privacy were certainly taken into account in the
negotiation of this provision on both the United States and the
European Union side. As you are aware, the EU is concerned
about data protection. We are as well. And there are several
aspects of the bank identification provision of the mutual
legal assistance treaty that help cure privacy.
In the first place, the request will go to our
investigative agencies, if they are coming from abroad, either
the FBI attache or DEA or ICE, as appropriate. And there has to
be sufficient information provided to allow basically a
reasonable conclusion that there is a crime involved, that the
information being sought exists in a bank, and that there is a
relationship between the crime and the information being
sought. That is a determination that our law enforcement
agencies will make before submitting this to FINCEN, the
Treasury Department's Financial Crimes Enforcement Network.
And a further protection is provided by the fact that all
that goes back through these channels is an indication that
there is an account or other information, not the actual
information itself. That information then has to be obtained
through mutual legal assistance with all of the protections and
assurance that the central authority, in this case, the
Department of Justice, will review any such request for mutual
legal assistance.
Senator Cardin. This is a sensitive area, as I am sure you
are aware. Once again, I think it is extremely important that
information that is needed in the investigation, legitimately
entitled to if it were in the United States, that that
cooperation be provided to the countries in which we have
entered into these agreements. But I am also concerned that we
have in place the adequate oversight to make sure that the type
of determinations that you just quickly went through are being
done so that Americans have the protection for privacy that
they are entitled to. It is one thing when the initiation comes
from American sources. We have jurisdiction over those entities
and can take action that there is abuse. The problem is the
information made available from foreign sources. We do not have
the same degree of oversight--the same degree of accountability
and jurisdiction.
So I think it is critically important that the procedures
in place in this country are checking and making sure that the
information made available is accurate and that there is some
degree of ability to hold the other country accountable in the
event that information proves to have been provided that was
inaccurate.
Mr. Swartz. Mr. Chairman, we take that very seriously, and
we will certainly, in terms of the review of this procedure,
ensure that that is the case. As I have noted, we really have
checks built into it at three levels: First, when our law
enforcement attaches receive the request; second, when it goes
to the Financial Crimes Enforcement Network at Treasury; and
then finally, through our central authority at the Department
of Justice when the request is followed up with a mutual legal
assistance request.
But that said, we recognize the importance of ensuring that
this process is used for the purposes for which it is intended,
and in the United States case, that will be for terrorism and
money laundering offenses. And we will certainly review the
process as it goes forward. In fact, Article 4 expects there
will be a review, and if there is a burden or other issues, we
expect that that would be a subject of further consultation.
Senator Cardin. And I noticed it was restricted to those
two areas of money laundering and terrorism. Was there
discussion of using it in a broader context, or is there
anticipation that that may follow, that there may be a broader
use of this power?
Mr. Swartz. The bilateral instruments make clear that it is
possible, should the United States expand its legislation in
this regard, that there might be a reciprocal expansion with
regard to requests from other countries. And several other
countries--EU Member States--have already made clear that it
can be used for their purposes for offenses beyond money
laundering and terrorism.
Our use of money laundering and terrorism was based on the
existing legislation under the PATRIOT Act, under section 314
in particular, which focuses on exactly this kind of procedure
for money laundering and terrorism within the United States. So
for the present, we believe that that addresses, particularly
given the extensive predicate offenses for money laundering in
the United States, the range of offenses that gives us a chance
to see how this procedure works, helps focus it in the way that
you suggest, Mr. Chairman. And then if Congress determines to
expand this approach, we can seek similar expansion from our
European partners.
Senator Cardin. I think that is reasonable.
Let me just make a strong suggestion, and that is that the
appropriate committees in Congress are kept well informed on
the use of this particular authority within these agreements so
that there are no surprises as to how it is being utilized, the
volume of requests that are being made, how they are being
screened, how you are following up to make sure that it was
appropriate. I think if you do that, you can avoid a future
problem, particularly when you come for perhaps expansion of
the power, which again I think is a reasonable request, but
there is going to be a desire to see how it has been applied.
So I would urge you, rather than wait for congressional
hearings or for something perhaps that comes out in the
newspaper that causes a reaction by Congress, that you work
with Congress on these powers because I think there is a
genuine understanding of the need to get these records, and we
just want to make sure it is done in the appropriate way and
that we just do not give carte blanche to other countries that
may have different tolerance than we do for protecting the
right of privacy.
Mr. Swartz. Mr. Chairman, we will be glad to work with
Congress in that regard.
Senator Cardin. Thank you.
Now that we have finished banking records, let me talk
about capital punishment, another subject, of course, that has
a little bit of controversy surrounding it. By way of
background, I serve as the Senate chair of the Helsinki
Commission and am well aware of the European concerns about
capital punishment in the United States. As I understand these
agreements, extradition can be conditioned upon certain
assurances given on capital punishment not being applied in a
particular case. I have a couple questions here.
The first is, Can a country that we have an agreement with
use that provision to deny the extradition of someone to the
United States even though the United States has indicated it
would not seek capital punishment?
Mr. Swartz. Mr. Chairman, I think it is fair to say that
under any extradition agreement in which such provisions
appear, including the current ones under consideration by the
committee, the requested state can decide not to grant
extradition and could do so notwithstanding the conditions
being given by the United States with regard to the death
penalty.
Were that to happen, however--that is, were the United
States to have indicated that the conditions under Article 13
of the U.S.-EU Extradition Treaty would be met by the United
States--we would certainly strongly take issue with the
country's refusal to extradite the individual precisely
because, as the chairman is well aware, the reason that we have
such a provision is to ensure that a fugitive cannot escape
punishment entirely by fleeing to a nondeath penalty
jurisdiction. We have never in this country failed to meet our
obligations with regard to assurances or conditions that have
been set with regard to the death penalty, and we would
certainly urge that point with regard to any country were it to
decide not to go forward, notwithstanding our agreement to meet
the conditions.
Senator Cardin. So what you are saying is that under the
exception for capital punishment, there would be a requirement
to extradite someone where assurances have been given, but that
there is enough discretion remaining that it could be a factor
in the denial of a country extraditing to the United States,
although we would raise serious concerns about that and use our
best efforts to make sure that does not happen. Is that a fair
assessment?
Mr. Swartz. Yes, Mr. Chairman. We would certainly make
certain that our best efforts were extended to make clear to
the country that we had agreed to the conditions set forth in
Article 13 and therefore there was no basis for refusing
extradition. But the request of State is always the final
arbiter with regard to decisions to extradite.
Senator Cardin. So now let me put it on the other side. The
country has decided to extradite the individual to the United
States. We now have custody of the individual and we are ready
to pursue the criminal matters with the restrictions that we
placed about no capital punishment. We have codefendants that
are in the United States for which the prosecutor would like to
see the capital punishment considered.
What type of dilemma do we have on constitutional rights
for equal justice and just the fairness of our system where we
have codefendants, one of which could be subject to capital
punishment, the other not, for committing the same crimes?
Mr. Swartz. Mr. Chairman, I would be glad to take that
question more fully for the record, but I can state that, of
course, it does present a difference with regard to those two
individuals. As the chairman is aware, oftentimes a variety of
factors can lead to different codefendants facing different
penalties even for the same crime. Nonetheless, it is the case,
as you say, that an individual who has been successful in
fleeing to a nondeath penalty jurisdiction can take advantage
of that fact to when he comes back to the United States subject
to conditions that the death penalty will not be imposed.
Senator Cardin. I will take that answer, but if you have
additional information you would like to make available to the
committee, we would appreciate that.
It is a serious problem for the United States. Capital
punishment--the use in the United States is not consistent with
our allies in Europe. They have a different standard for the
use of capital punishment. And it presents real problems for
law enforcement. And I do think there--I do not know if it is
constitutional. It might be a problem that we have when we have
different restrictions on different criminals that are
unrelated to the crime that they committed and the impact it
has certainly on the fairness of our system. I have concerns as
to how we deal with it under our current capital punishment
laws and would appreciate your adding to that weight of
discussion perhaps by expanding on your answer going forward.
Let me bring up another area that I would like to have a
little bit of understanding as to how you expect to use this
authority, and that is dealing with administrative authorities.
Perhaps you could tell us exactly what agencies you think are
involved and what type of requests you anticipate might be
made. As I read the agreements, there is a provision where you
can tailor the response based upon the burden of the agency. I
guess that is the best way of saying it. There is a safety
valve here that you could argue pragmatic reasons for not fully
complying with the request.
My question is, Was that put in at the request of the
United States or our European friends? Is there a concern that
there will be more requests coming to us or more requests
coming to them? Have you heard from the regulatory agencies as
to their concerns? Can you just fill us in a little bit more as
to that provision and how it will be implemented?
Mr. Swartz. Mr. Chairman, with regard to the investigative
agencies, the administrative agencies would have the power to
refer matters criminally. We would expect this likely to be
used on the U.S. side by entities such as the SEC, the
Commodities Futures Trading Commission, and perhaps the FTC as
three examples.
And we did consult with our administrative agencies in this
regard. We think this is an important advance certainly from
the United States perspective since our regulatory agencies do
have that power to engage in criminal referrals and do work
closely with us in that context when criminal referrals are
made. So we think this is a significant step forward from the
point of view of the United States.
In terms of, as you say, of the safety valve, because this
is a new provision, we, and perhaps the European Union as well,
felt that it was wise to have the possibility of determining in
the future if this becomes a burden on either side of the
Atlantic simply because this is basically a new approach we are
taking in this regard, but we expect the advantage to the
United States to be significant. We trust that the burdens will
not be that burdensome, but should they be so, we would have
the ability to reconsider how this should go forward in the
future.
Senator Cardin. So the provision that says ``shall take
measures to avoid the imposition of extraordinary burdens on
requests to states through application of this article'' was
suggested by the United States?
Mr. Swartz. I am informed, Mr. Chairman, that it was a U.S.
suggestion in this regard.
Senator Cardin. Well, it could work both ways. If we are
more aggressive in these areas, then it could be used by our
European friends to deny us some information. Of course, one of
the areas that we have been actively involved with the agencies
that you refer to in regards to criminal matters--I might
suggest that you keep us closely informed as to how this new
authority is working to see whether it has been useful in going
after the types of criminal activities that we are concerned
about and whether this provision is, in fact, being used to
filter the type of information we otherwise would be receiving
and, on the reverse side, how many requests we are getting from
other countries to give information. So I think particularly in
regards to the regulatory agencies, as well as the financial
information, they are sensitive matters that I would appreciate
you keeping us all informed.
Mr. Swartz. Mr. Chairman, we will certainly do that.
Senator Cardin. Thank you.
If you will bear with me for just one moment.
[Pause.]
Senator Cardin. There may be some additional questions for
the record. We would ask if they are made, that you would try
to supplement that within the next few days if possible because
I know we are trying to expedite the Senate considerations of
these treaties and agreements so that we can get the benefits
as quickly as possible.
With that, I thank again both of you for being here, and
the committee will stand adjourned.
Thank you very much.
[Whereupon, at 11:20 a.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Responses of Deputy Legal Adviser Susan Biniaz to Questions Submitted
for the Record by Senator Biden
Question. Please explain whether a breach by an EU Member State of
a provision of the U.S.-EU extradition agreement that has been
incorporated into a bilateral instrument would be considered a breach
by both the European Union and the Member State, or just the Member
State.
Answer. We would ordinarily expect that a breach by an EU Member
State of a provision of a bilateral instrument derived from the U.S.-EU
Extradition Agreement would be considered a breach only by that Member
State. Article 3 of the U.S.-EU Extradition Agreement requires the EU
to ``ensure that provisions of this Agreement are applied in relation
to bilateral extradition treaties'' between the individual Member
States and the United States. The EU's responsibility therefore relates
to ensuring that specified provisions are reflected in individual
bilateral instruments, while the Member States remain responsible for
carrying out the content of such provisions under their respective
bilateral agreements with the United States. Thus, even where a Member
State breach related to a provision that derived from the U.S.-EU
Agreement, it would be the Member State that would ordinarily be in
breach, rather than the EU. Having said that, we do not rule out a
situation in which a breach might be of such a character or magnitude
that it might implicate the EU's own responsibility for ensuring the
application of certain provisions with respect to an individual
bilateral instrument.
Question. What would be, if any, the surviving treaty-based
extradition relationship between the United States and an EU Member
State if that EU Member State were to terminate its bilateral
extradition treaty with the United States, but the U.S.-EU Extradition
Agreement remained in force? What recourse would the United States have
under such circumstances?
Answer. Under those circumstances, there would no longer be a
treaty-based extradition relationship between that Member State and the
United States. The key provisions of the Agreement with the European
Union apply, as Article 3 stipulates, ``in relation to bilateral
extradition treaties'' between the United States and the individual
Member States and do not constitute a free-standing extradition treaty
relationship. In any event, the Agreement does not contain such
fundamental extradition treaty provisions as the obligation to
extradite. Thus, if an EU Member State were to terminate its bilateral
extradition treaty with the United States, the provisions in the U.S.-
EU Agreement contained in a bilateral instrument would not suffice to
constitute a free-standing legal basis for bilateral extradition
relations.
At the same time, the institutional relationship with the EU
created by the U.S.-EU Agreement would remain. In addition to whatever
bilateral diplomatic discussions the United States were to undertake
with the terminating Member State, it could also utilize the treaty
relationship with the European Union, as well as take steps outside the
Agreement framework, to express its views and seek, as appropriate, EU
intervention and assistance in the matter.
______
Responses of Deputy Assistant Attorney General Bruce C. Swartz to
Questions Submitted by Senator Biden
Question 1. How would Article 4 of the U.S.-EU Mutual Legal
Assistance Agreement operate in practice? Please work through an
example of when you would hope to rely on this provision and explain
exactly what information you would give to the relevant EU Member State
in your request, what information you would receive in exchange, and
how you would use that information in prosecuting an individual for a
specific crime in a U.S. court.
Answer. U.S. agents conducting a criminal investigation in the
United States may learn that subjects of the investigation are using
banks or other financial institutions to further their illegal
activities, but may not know which foreign banks or institutions and
which accounts are being used. To further the investigation, the agents
would prepare a request directed to an appropriate EU Member State,
transmitted through one of the designated U.S. law enforcement agencies
(FBI, DEA, or ICE), requesting information as to whether the subject of
the investigation maintains accounts at, or has conducted financial
transactions unrelated to accounts through, banks or financial
institutions in the EU Member State.
The request for information would specify the identity of the
subject and the nature of the investigation. If the request is directed
to an EU Member State that has limited the scope of its assistance
under this provision to terrorism and money laundering offenses (to
correspond with the limits of U.S. assistance in reciprocal cases),
then the U.S. request must relate to an investigation into terrorism or
money laundering activities. If the request is directed to an EU Member
State that has defined its obligations to assist more broadly, then the
U.S. investigation may be related to a broader scope of criminal
conduct, as permitted by the agreement with that particular EU Member
State. The request would also provide factual information concerning
the investigation sufficient to lead the competent authority in the EU
Member State to reasonably suspect that the subject of the
investigation has engaged in the criminal activity under investigation,
that the information sought relates to the matter under investigation
and that the banks or financial institutions in the requested state may
have the information sought. To assist the EU Member State to narrow
the breadth of the inquiry, the U.S. request would provide any specific
information available to investigators that identifies the relevant
banks or financial institutions or the transactions at issue.
If the EU Member State concludes that it is appropriate and
possible to comply with the request, it would undertake an inquiry
through its financial sector to retrieve the information sought and
respond to the request by either confirming that the suspected
transactions took place or that the suspected accounts exist. They may
also provide information identifying the specific banks where the
accounts are held, the name of account holders and the corresponding
account numbers. No records of accounts or transactions would be
provided pursuant to this process. Because the response received would
only be information concerning the existence of relevant accounts or
transactions and not records themselves, if the U.S. agents and
prosecutors conducting the investigation conclude that the information
is relevant and probative, they would prepare a formal mutual legal
assistance request seeking the production of certified copies of the
relevant banking or financial records, so that the records may be used
at trial. This request for record production would be submitted through
the usual mutual legal assistance channels in place between the United
States and the particular EU Member State (i.e., through the applicable
Mutual Legal Assistance Treaty (MLAT) or by letter rogatory, if no MLAT
is in force). The MLAT or letter rogatory request would be reviewed by
the competent authority in the requested state to determine whether the
request meets the legal standards for the production of the records
sought. It is the certified copies of the records received through the
MLAT process, rather than the information received through Article 4 of
the U.S.-EU Mutual Legal Assistance Agreement, that will be used to
prosecute a defendant.
Question 2. You addressed in part at the hearing how the Department
of Justice would treat requests made by our treaty partners under
Article 4 of the U.S.-EU Mutual Legal Assistance Agreement so as to
ensure that any privacy concerns would be minimized for U.S. citizens.
Can you expand on this point and confirm that you will keep the
committee informed regarding the implementation of this provision and
any problems that develop, should these treaties be approved and
ratified?
Answer. Requests directed to the United States by EU Member States
pursuant to Article 4 of the U.S.-EU Mutual Legal Assistance Agreement
would be handled in a similar fashion as discussed above in the
response to question 1. Upon receipt of a request from an EU Member
State, the receiving agency (FBI, DEA, or ICE) would review it for
conformity with the requirements of Article 4 and, only when satisfied
that the request provides sufficient information that there is an
ongoing investigation into terrorism or money laundering activity that
there is sufficient factual information to reasonably suspect that the
subjects of the investigation engaged in the criminal activity and that
there may be information in U.S. banks or financial institutions that
is relevant to the investigation, would refer the request to the
Treasury Department's Financial Crimes Enforcement Network (FINCEN) to
conduct the inquiry through the U.S. financial sector.
As previously noted, information confirming the existence and
identification of accounts or transactions in the United States would
be provided pursuant to the mechanism established by Article 4 of the
U.S.-EU Mutual Legal Assistance Agreement. However, the corresponding
bank or financial records would not be available through this
mechanism. Should the requesting state seek production of the
corresponding bank or financial records for use in the foreign
investigation or prosecution, the United States may produce the records
upon receipt of an MLAT request or letter rogatory and after a U.S.
Federal court orders their production, pursuant to the MLAT and Title
28 United States Code, section 1782. This is the same procedure used
currently with respect to foreign requests for records from U.S.
banking and financial institutions. The U.S.-EU Mutual Legal Assistance
Agreement makes no changes to this process. Both the information
provided pursuant to Article 4 and any records produced subsequently,
through the usual mutual legal assistance channels, may be used only as
authorized by Article 9 of the U.S.-EU Mutual Legal Assistance
Agreement, addressing limitations on use to protect personal and other
data.
The United States and the European Union have the obligation to
take measures to avoid extraordinary burdens as the result of
application of Article 4, and in cases in which such burdens
nonetheless may result, they must consult immediately with a view to
facilitating the application of the provision. To comply with these
obligations, the Justice Department would monitor the implementation of
this provision and would also report any problems to this committee.
Question 3. In the bilateral MLATs between the United States and EU
Member States, U.S. assistance with respect to the identification of
bank information is limited to terrorism and money laundering activity,
consistent with the scope of section 314(a) of the USA Patriot Act.
Would it be possible for the United States to notify our treaty
partners of additional crimes for which we would provide assistance
with respect to the identification of bank information, without
additional U.S. domestic legislation?
Answer. As explained in the executive branch's report to the Senate
on the Agreement, the United States, consistent with the scope of
section 314(a) of the USA Patriot Act, chose to limit application of
this measure to terrorist and money laundering activity punishable in
both the requesting and requested States. The language permitting the
scope of the article to be expanded to further activity at a later time
was intended to expand the scope of assistance in the future in a
manner corresponding to any future expansion of the scope of the
measure under U.S. domestic legislation.
Question 4. Paragraph 3 of Article 8 of the U.S.-EU Mutual Legal
Assistance Agreement provides that States Parties ``shall take measures
to avoid the imposition of extraordinary burdens on requested States
through application of this Article.'' Please describe the sorts of
measures the United States intends to take, and what measures other
parties are expected to take, when complying with this article.
Answer. An increasing number of MLATs permit requests for
assistance to be made on behalf of regulatory agencies investigating
activity with a view to referral for criminal prosecution. In our
experience, there has not been a precipitous rise in the volume of
requests as a result of the adoption of such provisions. Nonetheless,
this article expands this approach to all 27 EU Member States at once,
and while the U.S. and EU negotiators did not believe that
extraordinary burdens would result through the application of the
article, the actual effect could not be known with certainty at that
time. Accordingly, we believed it would be prudent to include the same
kind of safeguard clause that was included in the bank information
article.
Question 5. The Convention with Belgium for the Avoidance of Double
Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on
Income, and accompanying Protocol (Treaty Doc. 110-3), like the new
Belgium MLAT, contains provisions regarding the sharing of information
held by financial institutions.
a. Can you explain to what extent, if any, the scope of these two
treaties' information-sharing provisions overlap?
b. Please compare and contrast these two information-sharing
mechanisms. In what ways is the tax treaty mechanism more
effective and in what ways is the MILAT mechanism more
effective?
c. Assuming there is some overlap in these provisions' scope of
application, in circumstances in which it is possible to
use either treaty mechanism, can you explain how government
officials will choose between these two mechanisms?
Answer to 5a. The Convention with Belgium for the Avoidance of
Double Taxation and the Prevention of Fiscal Evasion with Respect to
Taxes on Income (the Double Taxation Treaty) is available for
assistance (including the exchange of financial information) only with
respect to those matters specified in that instrument (i.e., matters
involving the administration of tax, including the prosecution of tax
evasion). The MLAT between the United States and Belgium facilitates
assistance--including obtaining records from banks and other financial
institutions--in investigations and prosecutions of a broad range of
criminal matters, including but not limited to tax offenses.
Accordingly, to a minor extent, the Double Taxation Treaty and the
United States-Belgium MLAT may overlap.
With respect to the identification of previously unknown bank
accounts and transactions set forth in Article 4 of the U.S.-EU Mutual
Legal Assistance Agreement and Article 12 bis of the United States-
Belgium bilateral implementing instrument, the potential area of
overlap, if any, would be extremely minor, given that both the United
States and Belgium limited the banking information provision applied by
operation of Article 4 of the U.S.-EU Mutual Legal Assistance Agreement
to information exchange with regard to terrorism and money laundering
activities.
Answer to 5b. The two information sharing mechanisms are mutually
exclusive in all respects except with regard to the investigation and
prosecution of tax matters, which could be pursued under either treaty.
The Double Taxation Treaty will be more effective in all noncriminal
tax administration matters, inasmuch as the MLAT would not be available
in those instances. The bilateral MLAT will be the more effective
mechanism in criminal tax matters inasmuch as assistance in such cases
is usually sought with a view to criminal prosecution and may involve
assistance beyond the competence of the tax authorities designated to
execute requests under the Double Taxation Treaty. For example, in
addition to the tax offenses, the criminal investigation also may
involve violations of Law beyond those covered by the Double Taxation
Treaty.
Answer to 5c. As noted above, the Double Taxation Treaty is
applicable only with respect to matters of tax administration and
investigations into tax offenses. The MLAT is an assistance mechanism
with a broader scope. Whether it is appropriate to use one mechanism or
the other might depend on whether the matter involves possible
violations of law beyond the scope of the Double Taxation Treaty. If
so, it may prove more efficient to make one request pursuant to the
MLAT that covers all possible criminal violations.
Question 6. In the 109th Congress, in connection with the
consideration of several extradition treaties, the Department of
Justice stated that ``[t]he Department of Justice has taken the
position that the Fourth Amendment does apply in the context of the
issuance of a warrant for provisional arrest pending extradition.''
a. Is it the position of the Department of Justice that in issuing
a warrant for the provisional arrest of an individual
pending an extradition request, the fourth amendment of the
Constitution requires an independent judicial determination
of probable cause prior to issuing such a warrant?
b. In making such a probable cause determination, is the proper
question whether there is probable cause to believe the
accused committed the offense(s) at issue in the request?
If not, what is the proper probable cause determination?
c. In making the decision to enter into extradition treaties that
authorize provisional arrest, such as the ones now pending
before the committee, does the executive branch examine the
process by which our potential treaty partners issue arrest
warrants? If so, is a determination made in each case as to
whether the prospective treaty partner's process requires
an evidentiary showing that is equivalent to demonstrating
probable cause to believe a crime has been committed,
before issuing a warrant for an individual's arrest?
Answer to 6a. The U.S.-EU Extradition Agreement does not contain an
article regulating the standard of proof an EU Member State must
satisfy in order to obtain the provisional arrest of a fugitive in the
United States pending transmission of the full extradition request. As
a result, the bilateral instruments implementing the U.S.-EU
Extradition Agreement apply the standard set forth in the extradition
treaty currently in force with the Member State concerned. The language
in these treaties describing the information to be submitted in support
of a request for provisional arrest varies. However, irrespective of
the particular language of the treaty, it remains the case that the
fourth amendment of the Constitution does apply.
Exactly what categories and quantum of information are sufficient
to meet fourth amendment requirements in the context of provisional
arrest pending extradition is not well settled, and in particular, U.S.
jurisprudence has articulated no uniform response to the question of
whether probable cause that the person committed the offense must be
provided at the provisional arrest stage. The law, however, is well
established in holding that a standard of probable cause must be met at
the subsequent stage of the extradition hearing, where the formal
extradition request and the certified documents in support of the
request are submitted. At the formal extradition hearing, in a case
where the fugitive is sought for prosecution, the U.S. court must be
satisfied, among other things, that there is sufficient evidence to
find there is probable cause to believe the fugitive committed the
crime at issue before the judge may certify that the fugitive is
extraditable. Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006); Sindona
v. Grant, 619 F.2d 167 (2d Cir. 1980). However, if the person has been
convicted at a trial at which he was present, proof of the conviction
itself satisfies the probable cause requirement and an independent
review of the evidence of criminality is not required. See, e.g,.
Spatula v. United States, 925 F.2d 615, 618 (2d Cir. 1991).
Thus, the purpose of provisional arrest--detaining a fugitive for a
limited period while the Requesting State amasses the documentation
required to sustain a finding of probable cause at the extradition
hearing--as well as existing case law affirming an abbreviated probable
cause determination for extraditability where the fugitive has already
been convicted, suggests that probable cause at the provisional arrest
stage can be met with less than a full-blown determination of probable
cause as to evidence of the criminality of the fugitive. That being
said, however, in practice, the Department of Justice seeks as much
information as possible to support a provisional arrest request,
bearing in mind that foreign law enforcement officials are not expert
in U.S. criminal procedure, and that information submitted in the
context of an urgent provisional arrest is necessarily more abbreviated
than in the context
of the full extradition request submitted to support a final judicial
determination of extraditability.
Our approach has been to present, at a minimum, information
sufficient for a court to find probable cause to believe that the
elements for extradition will be satisfied at the extradition hearing,
such elements generally being that the person has been charged or
convicted in the foreign jurisdiction, that the person before the court
is the person so charged or convicted, that the offense is one for
which extradition is provided under the applicable treaty (which
necessarily also entails a finding that the conduct at issue would be
an offense under U.S. law), and in the case of a person sought for
trial, that the information provided by the treaty partner establishes
probable cause to believe the person committed the offense. Thus this
information should include information to identify the fugitive,
particulars about the foreign charge or conviction and arrest warrant,
a clear description of the offenses for which the fugitive is sought,
and a summary of the facts of the case and, to extent possible, an
indication of the evidence relied upon. But ultimately it is for the
cowl to decide whether the information submitted is sufficient to
justify the issuance of a warrant for provisional arrest, and we will
strive to obtain as much information as possible so that the court will
be satisfied that a warrant should issue.
Answer to 6b. See above.
Answer to 6c. Prior to and during treaty negotiations, the
executive branch examines a number of questions, including the process
by which our negotiating partner issues arrest orders. Our experience
has shown that the U.S. probable cause standard is a unique outgrowth
of the fourth amendment and the body of jurisprudence interpreting it.
While some foreign legal systems come closer to considering the same
factors than others, no foreign system adopts the same standard.
Therefore, to ensure that there is sufficient indicia of a person's
involvement in the crimes alleged prior to being extradited for trial
from the United States, our treaties require that the Requesting
State's extradition request include a description of the evidence that
provides a reasonable basis to believe that he or she committed the
offense for which extradition is sought, in addition to a copy of the
arrest warrant. The phrase ``reasonable basis'' is commonly used in our
modern treaties and is more easily understood by foreign prosecutors
and judges, but it is meant to be the equivalent of the U.S. ``probable
cause'' standard and is understood as such by our courts.
Question 7. Several extradition treaties with EU Member States
limit the number of days that a person who has been provisionally
arrested can be detained without a formal extradition request having
been submitted. For example, Article 11(4) of the extradition treaty
with the Netherlands states as follows: ``Provisional arrest shall be
terminated if, within a period of 60 days after the apprehension of the
person sought, the Requested State has not received the formal request
for extradition and the supporting documents mentioned in Article 9.''
The majority of EU Member State extradition treaties, however, appear
to require each party to hold a person who has been provisionally
arrested for a certain minimum period of time, but leave to each
party's discretion whether to hold that person longer without having
yet received the formal extradition request. For example, Article 10(4)
of the extradition treaty with Belgian states as follows: ``A person
who is provisionally arrested may be discharged from custody upon the
expiration of 75 days from the date of provisional arrest pursuant to
this Treaty if the executive authority of the Requested State has not
received the formal request for extradition and the supporting
documents required in Article 7.''
a. What is the longest period of time the United States has held
someone who was provisionally arrested without having
received a formal extradition request from the country that
requested the person's provisional arrest?
b. In the last 5 fiscal years (through FY 2007), how many people
have been detained on provisional arrest warrants, and what
has been the average length of time that a person has been
held under provisional arrest without receipt by the United
States of a formal extradition request?
c. In the Department of Justice's view, what is the maximum length
of time that the United States can or should hold a person
who has been provisionally arrested, without a formal
extradition request from the country that requested the
person's provisional arrest?
Answer to 7a. It is rare for extradition treaty partners to miss
the treaty deadline for the presentation of documents in support of
extradition. Because the fugitive is put on notice of the foreign
country's intent to seek extradition when he or she is provisionally
arrested, it is in the foreign country's best interest to present the
supporting documentation within the treaty prescribed deadline or risk
the possibility that the fugitive will flee once again, upon being
released from custody. Because missed deadlines are rare, the
Department of Justice does not track statistics to demonstrate how long
a person who was provisionally arrested was held beyond the treaty
mandated deadline absent presentation of the formal extradition
documents.
Answer to 7b. The Department of Justice does not have the
statistics requested. Persons provisionally arrested are detained prior
to receipt of the formal extradition request for no longer than the
duration of time prescribed by the treaty. If the treaty specifies that
a person shall be released after expiration of that time period without
receipt of the documents, then the person would be released. If the
treaty specifies that the person may be released after expiration of
the treaty prescribed period if the formal extradition request is not
received, then the person may petition the district court for release
from custody. In such case, the Department of Justice either would
oppose the petition for release if all indications were that receipt of
the extradition documents was imminent, or not oppose the release if
the available information suggested that the formal extradition request
would not be forthcoming in the near future. It would be within the
judge's discretion whether to release the person or maintain the
detention. If the person is released, the extradition treaties usually
specify that a subsequent re-arrest may be requested if the formal
extradition request arrives at a later time.
Answer to 7c. The Department of Justice takes the position that it
is appropriate to hold persons in accordance with the provisions of the
particular treaty; and the maximum length of detention depends on the
provisions of the particular treaty. Rarely does this time period
exceed 60 days, although a few treaties do specify slightly longer
periods. In such cases, the longer time period is intended to make
special accommodation for translation of potentially voluminous
extradition documents into the language of the arresting country; which
must be accomplished, together with certification and transmission,
within the time specified by the treaty. Whether it is appropriate to
exceed the treaty specified maximum would depend on whether the treaty
envisions a discretionary extension of that time and the circumstances
in a particular case. For example, if the formal extradition documents
have been transmitted but unavoidably delayed and it appears that they
will be presented within a short period of time (days), then a court
might conclude that extension of the person's detention for a few days
is appropriate when balanced against the fact that re-arrest may be
sought when the documents arrive and there is a significant risk that
the fugitive would flee in the interim. However, it is worth restating
that missed treaty deadlines are relatively rare and persons are rarely
held beyond the treaty prescribed time periods.
Question 8. The United States has an existing extradition treaty
with each EU Member State. In the last 5 years, have there been any
diplomatic or legal problems with regard to the implementation of any
of these treaties? In other words, are the treaties operating as
intended, or have there been significant problems in securing
extradition of fugitives to or from the United States?
Answer. In general, the treaties are operating as intended, in an
atmosphere of mutual cooperation, and there have not been significant
legal or diplomatic problems. We expect that the streamlined and
updated provisions of the U.S.-EU Extradition Agreement will further
improve the extradition relationship of the United States with the EU
Member States.
